Terminally Ill Adults (End of Life) Bill (Ninth sitting)

The Committee consisted of the following Members:

Chairs: Peter Dowd, Clive Efford, † Sir Roger Gale, Carolyn Harris, Esther McVey

† Abbott, Jack (Ipswich) (Lab/Co-op)

† Atkinson, Lewis (Sunderland Central) (Lab)

† Campbell, Juliet (Broxtowe) (Lab)

† Charalambous, Bambos (Southgate and Wood Green) (Lab)

† Francis, Daniel (Bexleyheath and Crayford) (Lab)

† Gordon, Tom (Harrogate and Knaresborough) (LD)

† Green, Sarah (Chesham and Amersham) (LD)

† Hopkins, Rachel (Luton South and South Bedfordshire) (Lab)

† Joseph, Sojan (Ashford) (Lab)

† Kinnock, Stephen (Minister for Care)

† Kruger, Danny (East Wiltshire) (Con)

† Leadbeater, Kim (Spen Valley) (Lab)

† Malthouse, Kit (North West Hampshire) (Con)

† Olney, Sarah (Richmond Park) (LD)

† Opher, Dr Simon (Stroud) (Lab)

† Paul, Rebecca (Reigate) (Con)

† Richards, Jake (Rother Valley) (Lab)

† Sackman, Sarah (Minister of State, Ministry of Justice)

† Saville Roberts, Liz (Dwyfor Meirionnydd) (PC)

† Shah, Naz (Bradford West) (Lab)

† Shastri-Hurst, Dr Neil (Solihull West and Shirley) (Con)

† Tidball, Dr Marie (Penistone and Stocksbridge) (Lab)

† Woodcock, Sean (Banbury) (Lab)

Lynn Gardner, Lucinda Maer, Jonathan Whiffing, Committee Clerks

† attended the Committee

Public Bill Committee

[Sir Roger Gale in the Chair]

Terminally Ill Adults (End of Life) Bill

Clause 1

Assisted dying

Amendment proposed (this day): 34, in clause 1, page 1, line 4, leave out “capacity” and insert “ability”.—(Sarah Olney.)

14:00:00

Question again proposed, That the amendment be made.

Members may remove their jackets if they wish to do so. I reiterate the instruction—you will note that it is an instruction, not a request—that Members address one another through the Chair and do not, therefore, use the expression “you” when speaking. I understand we had a slight problem with that this morning. I remind the Committee that with amendment 34 we are discussing the following: Amendment 36, in clause 7, page 4, line 7, leave out “capacity” and insert “the ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 37, in clause 8, page 4, line 34, leave out “capacity” and insert “the ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 38, in clause 9, page 6, line 27, leave out “capacity” and insert “ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 202, in clause 9, page 6, line 31, leave out “capability” and insert “capacity”. This amendment corrects a typographical error. Amendment 39, in clause 9, page 6, line 31, leave out “capability” and insert “ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 40, in clause 12, page 8, line 2, leave out “capacity” and insert “the ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 41, in clause 13, page 9, line 31, leave out “capacity” and insert “ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 42, in clause 18, page 12, line 23, leave out “capacity” and insert “the ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 43, in clause 30, page 18, line 16, leave out “capacity” and insert “the ability”. This amendment is consequential on Amendment 34 and NC1. Amendment 44, in clause 40, page 23, line 26, leave out from “capacity” and insert “ability”. This amendment is consequential on Amendment 34 and NC1. New clause 1—Ability to make decision— “The person is to be considered as having the ability to make a decision to request assistance to end their life if they can fully understand, use and weigh the relevant information in accordance with regulations made by the Secretary of State under affirmative resolution.” This new clause defines the concept of ability which is intended to replace the concept of capacity. This new clause is intended to replace Clause 3. Amendment 45, in schedule 2, page 26, line 36, leave out “capacity” and insert “the ability to make a decision”. Amendment 46, in schedule 3, page 28, line 1, leave out “capacity” and insert “the ability to make a decision”. Amendment 47, in schedule 5, page 30, line 14, leave out “capacity” and insert “the ability to make a decision”.

Before the break, the hon. Member for Penistone and Stocksbridge gave a helpful account of the operation of the Mental Capacity Act 2005, with particular reference to the concept of “best interests” that applies in that Act. She explained that the best interests consideration kicks in only once the capacity test has been failed—once it has been concluded that someone does not have capacity. Therefore, there would be no best interests consideration in the case of assisted dying. Either a person has capacity and that is that—a rather low bar, which is, as we have discussed, appropriate for buying a cup of coffee, is got over, and they are off to the assisted dying commission, or whatever process we eventually try to set up—or they do not have capacity and are ejected from the system, and there is no best interests consideration. I reference that because my whole point is that the Bill does not use the Mental Capacity Act; it just uses the definition of capacity that is in it, and that definition is very weak. It is designed to assume capacity in the patient and, as we discussed earlier today, it can include somebody who has impaired judgment—they could be depressed or even suicidal. Indeed, my hon. Friend the Member for Solihull West and Shirley said earlier, very honestly, that he would be content with somebody who had depression accessing assisted suicide, as would be possible under the legislation. The point is that once the test of capacity has been passed, there is no best interests consideration. It is a great abuse of the Mental Capacity Act, the whole purpose of which is concern for the vulnerable, for that purpose to be ignored once the usefulness of the Act has been fulfilled. This Bill does violence to the Mental Capacity Act in using it for this purpose. The fact is that that Act was designed for the opposite situation: to protect people from having things done to them. I will conclude shortly, Sir Roger, but that brings me to the point we have discussed at length already today: the crucial question of whether the decision to have an assisted death is different from the decision to decline or to cease treatment. I start by pointing out that case law specifies that to decline treatment is not to commit suicide —I recognise that the hon. Member for Spen Valley does not like the term suicide, and I apologise, but we are using legal terms here. The fact is that there is a distinction in law between the act of suicide and the decision to decline treatment. I refer in particular to the famous case of Airedale NHS Trust v. Bland in 1993, and quote Lord Goff, of the House of Lords, who said that “in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient’s wishes.” I also quote Sir Thomas Bingham, as he then was, who said that in the case of Tony Bland it was plainly not suicide, and that “it was not the discontinuance of artificial feeding but the patient’s condition and its underlying cause which caused his death”. In the withdrawal of treatment, it is not the act of withdrawing treatment that kills someone, but their disease, or the condition they have, whereas in assisted suicide it is the act that kills them. That is a crucial distinction, and that distinction is apparent. We heard it this morning in remarks from my hon. Friend the Member for Solihull West and Shirley and my right hon. Friend the Member for North West Hampshire, and I think from the hon. Member for Spen Valley, who pointed out that there is a difference between the two cases, as is evident with respect to advanced directives that allow for the withdrawal of treatment. They do not allow for the active administration of treatment; they allow for the withdrawal of treatment. They would not allow for assisted dying, as the hon. Member for Luton South and South Bedfordshire accurately said. This goes to the heart of the matter. There is a difference between being left alone and demanding that something is done to us. The state protects our right to be left alone. It does not yet give us the right to have something done to us simply because we asked for it.

The proposal in the Bill is not about someone doing something to someone: it is about self-administration and someone being able to do something to themselves. The point is about the choice to do that.

I recognise that, and that the Bill makes a distinction in respect of euthanasia or physician-assisted suicide, which would be the doctor doing it to us. The Bill specifies that the drugs must be self-administered. I do not understand the logic of that distinction, but I recognise that there is an attempt to make the Bill more palatable and that the distinction has been preserved. Nevertheless, the Bill would enable a doctor to prescribe lethal drugs with the purpose of ending a life. That is an act that is performed: a person is prescribed drugs to end their life. Whether they take the pills or press the syringe themselves, the act has been performed, and the prescribed drugs kill the person.

My hon. Friend will recall the evidence from Professor Hoyano, who said she could not legally see the distinction between a doctor handing the pills to somebody to take themselves and the doctor pulling the plug out of the wall to turn off the ventilator or whatever machine might be keeping the person alive. Both of them are an act by a doctor at the request of the patient to foreshorten their death and avoid whatever they contemplate at the end. I realise we are dealing with semantics here. We might have an irreconcilable difference about such an act, but I have to say that from the point of view of a patient—the person approaching their death—those two acts seem to be broadly the same. In both circumstances I am requesting that a doctor do something to hasten my death, because I do not wish to continue living in the circumstances presented to me.

My right hon. Friend articulates the point well. I do not think it is a semantic decision: there is a real distinction. The fact is that unplugging the ventilator leads to death, but what kills the patient is not the administration of any treatment or drugs that have been provided. The patient dies naturally, whereas the administration of drugs designed to kill them is a qualitatively different event. I agree that of course the ultimate effect is the same, but the act that is performed is qualitatively different, and indeed the intention of the doctor is different.

Forgive me, but surely the whole point of what we are trying to do here is to give people the opportunity to avoid the natural death that is presented to them. We hear again and again, and we heard it from the families who gave evidence, that people profoundly wished to avoid their natural end because it was going to be degrading, unpleasant and profoundly painful on every level. That is the whole purpose of the act. To say that we should avoid that issue seems to me to negate our whole reason for being here.

We are trying to avoid suffering, pain and bad deaths. We all share that view. Indeed, later amendments look explicitly at the purpose of an assisted death and the question of the avoidance of pain. I am simply making the important distinction between the decision to withdraw treatment and the decision to administer fatal drugs, which, as I say, are qualitatively different—different in principle and different in practice.

To build on the point made by the right hon. Member for North West Hampshire, this is the heart of the issue. You are right that they are slightly different things.

Ahem.

Sorry, Sir Roger. The hon. Member is correct. It gets to the heart of whether we think this is the right thing to do. The Bill Committee’s job is to put that decision back to the House. It is not for us to decide today; it is for us to have the discussion about how we can improve the Bill and send it back to the House. The hon. Member is absolutely right to say that it gets to the heart of the issue. I think dying people should be given that choice. In the same way that they are given the choice to have treatment withdrawn or the machine turned off, they should be given the choice to take control and to have the autonomy and dignity that assisted death will provide.

The hon. Lady has expressed very well her whole purpose for the Bill. In a sense, all the debates we are having about safeguards, protections, process and eligibility are secondary to her purpose, which is to give autonomy to patients. One has to ask about the purpose of the safeguards, particularly the one on people having to administer the drugs themselves. In all jurisdictions where physician-assisted suicide is legal, that is the option that people overwhelmingly opt for—I certainly would if I were in that situation. The hon. Lady is right, and that is what she is trying to do: she simply wants the Bill to go through. I take strong issue with her implied point that our purpose here is simply to work out the Bill’s implementation. We are looking at each clause, line by line, to decide whether it is safe or not. As she said herself at the time, the decision on Second Reading was a vote in principle to continue the discussion, which is what we are doing now. We are closely and minutely examining whether every clause is safe.

On that point, it is not an either/or. It is not just about passing legislation that improves choice and gives autonomy and dignity to dying people, and indeed fixes the current failings of the law as it stands, as we have discussed in great detail. It is about providing safeguards that make sure that is done safely, securely and robustly, and that address the issues and concerns we are discussing. It is not an either/or and it is important to make that distinction.

I am happy to give way to the hon. Lady.

Order. You cannot intervene on an intervention. Let us be absolutely clear about that. The hon. Lady was intervening on the hon. Gentleman who has the floor. If he now wishes to give way, he may do so.

If the hon. Lady would like to intervene on me, I would be happy to give way.

To go back to the amendment, we were talking about the Mental Capacity Act. The use of that Act must be drawn into question, because it was never intended as legislation for assisted dying. Much of what has been said in favour of using the MCA relates to it being tried and tested, and people understanding it, and the idea that to use anything else would make life complicated for professionals who use it as part of their day-to-day activities when assessing capacity. On the surface, those reasons seem reasonable, and it is an easy option. However, if the MCA does not meet the threshold of meeting the needs of everyone, convenience should not be the deciding factor. Convenience cannot be considered as a sufficient reason to use the MCA as a fundamental element of the Bill. The assisted dying Bill in itself is enough reason to have an alternative measure to determine an individual’s eligibility to be considered for assisted dying.

Order. I am going to have to draw the hon. Lady to order. An intervention is an intervention. I accept that we have slightly more flexibility in Committee than we do on the Floor of the House, but the hon Lady, and indeed all hon. Members, have to understand that speeches are speeches and interventions are interventions. That said, it is the job of the Chair to make absolutely certain that every Member has the right and the opportunity to speak. If the hon. Lady wishes to make a speech, that is entirely within her right: all she has to do is indicate to the Chair that she would like to be called and she will get called.

I am grateful to the hon. Lady; her points are absolutely right. Even if the House concludes that the overall principle is right, as the hon. Member for Spen Valley suggested, if it is not possible to do it safely, we should not do it at all. My great concern is that proceeding with the use of the Mental Capacity Act as it currently stands in the Bill will make the Bill dangerous. Let me conclude my point about the difference between assisted dying and the withdrawing of treatment. To decline treatment is to assent to nature; it is to let one’s body do what it will. To commit suicide is to contradict nature; it is to do something to one’s body that interrupts its own plans. I recognise that the outcome is the same —it is death—but we are considering the process of decision making in the clause, and the decision is fundamentally different.

14:15:00

If we want to proceed to have an assisted dying law, let us do it properly, with a bespoke ability test that is appropriate to the novelty of assisted dying and that builds on the principles of the Mental Capacity Act that we all greatly respect—actually simplifying it. We should set out very clearly what an ability test would be. That would appropriate to this new step that we are taking. We need a new stand-alone definition, as the Royal College of Psychiatrists has argued.

I recognise—I think the hon. Member for Spen Valley would accept this—that we have been forced into this entirely sub-optimal step of proposing the amendment and new clause 1 as an alternative approach that would give the Government the power to define the terms at a later stage. The fact is that we are confronting the inadequacies of this process, with the policymaking and exploration that should have been done at the outset having to be done as we go through the Bill. I deeply regret that, but I hope the Committee will agree that it is a simple and better step to agree to a bespoke ability test rather than rely on the Mental Capacity Act which, as the hon. Member for Broxtowe said, was never designed for this purpose.

It might be helpful for the Committee to know that I was bequeathed a list by Ms McVey. I understand that those wishing to speak are the hon. Member for Bradford West, the Minister, and the promoter of the Bill, the hon. Member for Spen Valley. I shall then call the hon. Member for Richmond Park, who tabled the amendment, to wind up the debate. If anybody else wishes to speak, please indicate in the normal fashion by rising. I will call the hon. Member for Broxtowe if she wishes to speak, but I need to know whether she wants to. If she stands up at the right time, that will be fine. Please be aware that once I have called the mover of the amendment to wind up, there will be no further debate on the subject. That really will be the end of the debate.

I rise to speak in support of the amendment tabled by the hon. Member for Richmond Park. The key word here is “capacity”. There has been much debate around the Mental Capacity Act. I will go back to the oral evidence we heard, as well as the written evidence and submissions in relation to the amendments and the clause. The psychiatrists who have advised are against it. I appreciate and recognise the contributions from my hon. Friends the Members for Penistone and Stocksbridge and for Bexleyheath and Crayford, who spoke eloquently about the word “ability” from his experience. I recognise that we have not had the opportunity to test the concept of ability.

I appreciate my hon. Friend bringing up that point. It is important to note that all Commonwealth jurisdictions that have assisted dying use the concept of mental capacity. We are basing the utility of the Mental Capacity Act not only on 20 years of the courts and medics dealing with it, but on the learning of other jurisdictions that have put assisted dying in place. The concept of ability, however, has no basis in law.

I absolutely concur that we are testing in regard to other jurisdictions. In Oregon, there is not just the assessment of capacity but a referral to a counsellor. We have had lots of evidence when it comes to capacity, and I will go back to some of the key points. The Royal College of Psychiatrists stated explicitly that the Mental Capacity Act is “not sufficient for the purposes of this Bill.” Explaining why, the Royal College of Psychiatrists said that assessing the capacity to end one’s life is “entirely different” from assessing for the capacity to decide treatment. Three psychiatrists who gave evidence to the Committee —Professor Allan House, Dr Annabel Price and Professor Gareth Owen—all expressed doubts about the use of the Mental Capacity Act to assess whether a person was in a fit state of mind to undertake assisted dying. When Professor Allan House was asked why some people might choose assisted dying, he said they are vulnerable. When asked what he meant by that, he said: “They are not people asserting autonomy and pleasure in their ability to make a choice; they are people describing to you things that are negative influences on their life.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 161, Q202.] Professor Gareth Owen said: “I have looked at mental capacity a lot in research, and there is no experience of the decision to end one’s own life. It is outside the experience of the Mental Capacity Act, the Court of Protection, the associated research and practitioners on the ground. The reference to the Mental Capacity Act in clause 3 puts you into an area where there is no experience of the central capacity question under consideration. It is very important that Parliament be clear-eyed about that.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q287.]

On the hon. Lady’s point about being clear-eyed, it is important that we look closely at the drafting of the Bill and the utility of the Mental Capacity Act. There are eight occasions on which a person who might seek assistance can formally consider their decision making, and the Mental Capacity Act would come into play at each of those stages. A person with a terminal illness who wishes to seek assistance does not make a one-off decision; they make the decision eight times during the process, so we have a wide variety of opportunities to ensure that their consent is ongoing.

I recognise that there are eight occasions, but when we debate later clauses I will talk about coercion and manipulation. Those also apply to the issue of capacity, and the Bill refers to them on numerous occasions.

A very good point has been made about looking at the Mental Capacity Act at different times during the process. However, it does not matter how many times a bad process is applied; if the process is insufficient and does not have a high enough safeguard, it will never give the right answer. We need to ensure that we have the right test. It is absolutely right that we apply it multiple times, but does the hon. Lady agree that we need to consider the quality of what we are applying in the first place?

I completely agree. Professor Owen also said: “I have had over 20 years of research interest in mental capacity. When I look at the issues relating to mental capacity with the Bill…the other important point to understand is that they are very novel. We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q286.] Like my hon. Friend the Member for Bexleyheath and Crayford, I am certainly not a doctor, although I have experience in the NHS, but I do know that we do not have psychiatric experts or experts on capacity in this Committee.

Earlier, the hon. Member for Solihull West and Shirley made a point about public confidence in the Bill. In oral evidence, the representatives from the Royal College of Psychiatrists—we nearly did not hear from them; we had a vote about whether we would, and they were added later—made it clear that they have severe doubts about applying the Mental Capacity Act to the Bill. Does my hon. Friend share those concerns?

I absolutely share those concerns, which is why I pressed the issue to a vote. As I have explained to my hon. Friend the Member for Spen Valley, I am grateful that the Royal College of Psychiatrists gave evidence. It said that the Mental Capacity Act “is not sufficient for the purposes of this Bill”. In oral evidence, Professor Jamilla Hussain, an expert in palliative care and health inequalities, highlighted an inequity in assessment using the Mental Capacity Act. She said that she does not think that “the Mental Capacity Act and safeguarding training are fit for purpose. For something like assisted dying, we need a higher bar—we need to reduce the variability in practice.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 199, Q260.] My hon. Friend the Member for Penistone and Stocksbridge mentioned the process in the Bill being repeated eight times, but I want to bring us back to the issue of capacity in relation to coercion. The Royal College of Psychiatrists said: “In any assessment of capacity, we must also consider whether a person is making the request because they consider that they are a burden or because they do not consider that they have access to effective treatments or good-quality palliative care. At a population level, palliative care, social care and mental health service provision may impact the demand” for an assisted dying service. Although I appreciate that we will debate this in greater detail later, on clauses relating to coercion, it relates to the issue of capacity. In her evidence to the Committee, Chelsea Roff, a specialist in eating disorders, said: “One thing I would like to highlight in our study is that all 60 people who died” by assisted dying after suffering from anorexia, who were mostly young women, “were found to have mental capacity to make the decision to end their life, so I worry that mental capacity will not be an effective safeguard to prevent people with eating disorders from qualifying under the Bill. I also note that Oregon and California, where I am from and where we have found cases, have an additional safeguard to mental capacity. That is, if there are any indications that the person might have a mental disorder, that person must be referred for a mental health assessment.” ––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 141, Q177.]

I completely agree with the point the hon. Lady is making about mental capacity applying to eating disorders, but would that not be better debated in relation to defining an eating disorder as a terminal illness, rather than in regard to mental capacity?

I will be speaking to the issue in relation to terminal illness, because it relates to my amendment in another grouping. The reason I am making this point now is that it also impacts on capacity. When we are assessing capacity—again, this talks to the point—the truth is that nobody in this Bill Committee or otherwise can tell me that the Mental Capacity Act has been applied to the question, “Would you like assisted dying?”

First, it is impossible to argue that, because we have never been able to have assisted dying in this country, so it is a spurious argument. However, I do not quite understand the argument here. You are suggesting—

Ahem.

I am sorry. My hon. Friend is suggesting that a system that has been tried and tested in court and by clinicians throughout the country over the last 20 years is not preferrable to a new system that is completely untried. I thought this Committee was about making these things safe for patients, and I cannot see how the amendment makes them more safe.

My hon. Friend speaks to my point and the idea that the Act has been tried and tested. When we are talking about coercion, and capacity in relation to coercion, I come back to the point that we in this House have only just, in 2015 and 2021, made legislation using the word “coercion”. It was not recognised before. On the idea that this has been tried and tested for the last 20 years, I simply beg to differ. Coercion does come into the issue of capacity. We are looking at the Mental Capacity Act, which was introduced in 2005 and is 20 years old. These conversations were not being had in Parliament at that time; the vocabulary did not include “coercion” or “undue influence”, even at the time the Mental Capacity Act was passed by this House. Again, that speaks to my point: are we really saying that we want to test the Mental Capacity Act on something that has never been done before?

14:30:00

I am trying to understand my hon. Friend’s argument. In terms of a person choosing to ask their doctor to turn off their life support machine, as opposed to someone offering a person drugs to self-administer, I understand that there are differences in terms of public policy and that, for some, there are differences morally. However, in terms of capacity—the decision as to whether that person can make that choice themselves—why is it different?

The hon. Member for East Wiltshire answered that question eloquently earlier. Although the outcome is the same, we are asking two different questions. The question is not about turning off and unplugging a machine; it is about whether someone will take drugs to end their life.

To follow the basic premise of your argument—

It is not my argument.

It is not your argument, Sir Roger; it is my hon. Friend’s argument. I apologise. To follow the basic premise of my hon. Friend’s argument, she is saying that the Mental Capacity Act is not tried and tested for what we are discussing. However, by definition, neither is this amendment; if anything, it is even worse, because words such as “ability”, which we are discussing here, have absolutely no basis, as was admitted by the hon. Member for East Wiltshire. On that basic premise, my hon. Friend will not agree with any amendment that is tabled today, because none of them is tried and tested. Is that correct?

My hon. Friend is not wrong, in so far as there can be two truths. There is a truth, for me, that the Mental Capacity Act does not deliver what we need it to deliver, and that is the concern we have heard from people who have given us evidence. We have not talked about the word “ability”—as hon. Members have pointed out, it is not set out in law—so there is a conversation to be had. As my hon. Friend the Member for Spen Valley, the promoter of the Bill, clearly stated, this is about strengthening the Bill and bringing the best Bill to Parliament to give people a choice. That is what this is about.

The hon. Member is making such an important speech, and I am very grateful to her. This is a crucial discussion. The hon. Member for Ipswich suggested that the amendment would make things worse because it would apply a new test.

I was just following the argument.

I respect that. The hon. Gentleman is suggesting that there would be a new test, but it is for a new situation. I want to alert the Committee to the purpose behind this amendment. I understand that we are in a slightly polarised discussion. The hon. Member for Bradford West and I both voted against the Bill on Second Reading, and it is not likely that we will ever support it. Nevertheless, I encourage hon. Members to consider that the amendment, which was tabled by the hon. Member for Richmond Park, who is not opposed to assisted dying in principle, is genuinely trying to ensure that the Bill is as safe as it can be. All that has been proposed, as the hon. Member for Bradford West suggests, is a strengthening and a recognition of the importance of the principles of the Mental Capacity Act, without the—

14:33:00

14:50:00

I will conclude my intervention very quickly. I fear that I may have mischaracterised the hon. Member for Bradford West when I said that she is opposed to the Bill in principle; in fact, I do not think that is the case. I am not sure what the difference is between opposition in principle and opposition to the detail, but I recognise that she is certainly not opposed to the Bill in principle, so I apologise to her. Does the hon. Lady agree that the Bill would take a great leap in the dark by legalising assisted dying? At the moment, that leap lands on the uneven ground of the Mental Capacity Act. Does she agree that, if we want to do this properly, we should prepare a solid, cushioned, safe landing space that is appropriate for the Bill, rather than the inappropriate mess that the Mental Capacity Act would induce?

I am grateful to the hon. Gentleman for his correction. To clarify, I do not think anybody in this House disagrees in principle with the idea of not letting people suffer. I am very much about principle, and I came to this Committee very much in that spirit. When I was asked to join this Committee, I had to sleep on it, and I now realise why. I am grateful for the interventions from my hon. Friends the Members for Rother Valley and for Ipswich. There are a couple of things that are important for us to understand. The Mental Capacity Act has not been tried in any of the other jurisdictions across the world on which we are basing this law, so we cannot make a comparison. On the issue of whether it is either/or—whether it is the Mental Capacity Act or the word “ability”—the Secretary of State has the power to change that. If we are to be true to the spirit in which we have come to this debate to make the Bill as safe as possible, given that so many psychiatrists and experts have said that they are not convinced that the Mental Capacity Act is fit for purpose in this regard, surely it is incumbent on us to make that case.

My hon. Friend said that the Mental Capacity Act is not tried and tested, and I was challenging the premise that we should apply a concept that is not tried and tested in this or any other country. She is saying, “I can’t support the Mental Capacity Act in its current form because it is not tried and tested,” but, following that argument, she would presumably not support this amendment or any others because what they propose is also not tried and tested.

This amendment is an attempt to have that conversation and to strengthen the concepts that we are debating. That is the whole point of the Committee. As my hon. Friend the Member for Spen Valley said, there is no point in having witnesses if we do not listen to what they say. This is what the witnesses said. My hon. Friend the Member for Ipswich makes a valid point. He asks whether I would, by that definition, support this amendment. I support it because it has led to a debate that we have had all morning, and that we are carrying on into the afternoon. As it is, the Bill does not give me confidence, whether it is due to the use of the Mental Capacity Act or the definition of “ability”. I feel that it needs to go much further, perhaps through the Secretary of State tabling another amendment at a later point.

We heard many pieces of oral evidence from expert psychiatrists, including from the Royal College of Psychiatrists, saying that the Mental Capacity Act is not fit for the Bill. Even if we use the Act, many conditions such as depression or delirium —or the effects of some medication—can impact on people’s decision making. It is worrying when someone like Dr Rachel Clarke, who has extensive experience in the Mental Capacity Act and has been training medical students and nurses, says of those mental capacity assessments that “it is often the case that they are…poorly conducted.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 71, Q85.] Would my hon. Friend agree that rather than use the Mental Capacity Act, the “ability” amendment tabled by the hon. Member for Richmond Park would be more suitable and make the Bill safer?

I know that my hon. Friend comes from a mental health background and has worked as a professional in this area. I absolutely agree that we need to strengthen the Bill, which is why I will support the amendment. I feel that we must strengthen it because the Secretary of State can make some interventions.

I want to clarify what the Royal College of Psychiatrists actually said, because I realise that the hon. Member is relying a lot on that evidence. In an exchange with me in their oral evidence, the doctor from the royal college said that if I were to equate the decision to refuse treatment with the decision to request a hastening of my death in extremis as qualitatively the same, and of the same seriousness and outcome, then the Mental Capacity Act may well be appropriate for the decision. The difference was information. We would be relying on the notion of informed consent, and therefore on the information that the person was being given about the consequences of that decision. We will be debating later in Committee the information that is given to a person to form that decision, but I do not think it is quite the case that the psychiatrist said that it could not be or was not fit for purpose. Actually, they said that it may well be sufficient if we equate those two decisions—and many of us do.

I know the right hon. Member speaks with a huge amount of experience. I am very new to the subject, but I know that the evidence from the psychiatrist was very certain—not “may well be”. The language that they used, which I referred to earlier, was very clear that it is not a good standard. They said: “We are in uncharted territory with respect to mental capacity, which is very much at the hub of the Bill”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 226, Q286.] and there is an inequity in assessment using the Mental Capacity Act. There were other categorical statements made—there was no “maybe” in there. For me, a “maybe” does not cut it at this level; the test should be much higher in order to take the option of assisted death.

If the hon. Lady goes to column 277 of Hansard from that oral evidence session, Dr Price said: “You are equating a refusal of treatment, in capacity terms, to hastening death by assisted dying. If those two things are equated, in terms of the gravity and the quality of the decision, the Mental Capacity Act may well be sufficient, but there are differences. There are differences in the information that the person would need and what they would need to understand.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 277, Q361.] It is clear what Dr Price said. To be honest, the question was partly prompted as we had become a little confused, because the whole practice of psychiatry in the UK is founded on the Act at the moment. She seemed to be implying that somehow the entire practice of psychiatry in the UK was on unstable ground—and I do not think anybody is claiming that.

I will take this intervention and then address both points.

It is interesting that my right hon. Friend the Member for North West Hampshire has cited that, and I will look at Hansard. However, what I just heard him say, quoting the doctor from the Royal College, was that if we equate the gravity of the cases, it would be appropriate. That is the equivalent of saying that if the two cases are the same, the mechanism can be the same. Crucially, I do not believe that the Royal College does equate the gravity of the two cases. Its written evidence states that while “a person’s capacity to decide treatment can be reliably assessed, an assessment of a person’s mental capacity to decide to end their own life is an entirely different and more complex determination requiring a higher level of understanding.” It regards the two cases as different in principle and therefore requiring different tests.

15:00:00

I think that the hon. Member’s intervention responds to some of the points of the right hon. Member for North West Hampshire. We have heard a lot about the equivalence of endings versus decisions. The example given earlier, of somebody pulling the plug because they did not want treatment any more, happens in very few cases. From my experience of working in the NHS and with disabled people, when people are at the end of life, their cases sometimes do end up in court in front of a judge. That may be because there is a difference of opinion—be it medical, between the family, to do with capacity, or whatever the issue is. We are removing that. My understanding is that the promoter of the Bill is removing the need for the judge and is proposing a panel, which is what I read in The Guardian earlier.

I wonder whether the hon. Lady can help me with an area of her argument that I am conflicted by. I have heard the points made by my hon. Friend the Member for East Wiltshire, drawing the distinction between those who refuse treatment for a condition that is then terminal and those actively seeking assistance in ending their life. There is a third group who choose to refuse food and nutrition. That is not a treatment in the conventional sense, to combat a disease process, that is normal sustenance that would keep someone alive. Given that the MCA applies to that decision and someone’s ability to refuse on that basis, how does that interplay with the amendment as proposed?

I have tabled an amendment to a later clause that talks specifically to that. The word “only” needs to be removed. We have seen this in Oregon, which I will come to later. We heard in the oral evidence that 60 women assessed to have capacity died because they had anorexia.

In respect of those numbers, it is important to be really clear that the vast majority of those circumstances were in the Netherlands and in other jurisdictions that have a much broader set of eligibility criteria than the Bill. We are talking about a very small number of cases in jurisdictions with a similar set of criteria to ours. It is important to make that point.

My understanding, which comes from Chelsea Roff, was that that happened specifically in places such as Oregon and California, but I am happy to revisit that. Coming back to the point, we must ensure that people with an eating disorder such as anorexia or a mental health condition will be excluded from the Bill. That will be my second amendment. I do not know if that answers the question.

It may well have been the way that I phrased it, but the point I was seeking to make was that the Mental Capacity Act, as it currently operates, can be used for those patients who choose to refuse food and water. My view would be that that is a distinct group of people who are refusing active treatment. Given the hon. Lady’s distinction between those who refuse treatment in the conventional sense and those who are seeking assisted dying and her view that for the latter group the MCA is not the appropriate mechanism, is she saying that for that group of individuals who refuse food and water—effectively choosing to end their life through starvation—the MCA is not an appropriate mechanism to assess their capacity?

I thank the hon. Member for his intervention, but we are not here legislating on anorexia; we are here legislating on the option of assisted death. I am trying to understand where he is going with that argument. It genuinely does not make sense to me.

I do not think that the hon. Member for Solihull West and Shirley is saying that this is about people with eating disorders or anorexia; he is asking about people who are terminally ill who stop eating and drinking. They do that as a course of action to essentially end their own lives. It does happen on a fairly regular basis. We have had testimonies from families who have watched loved ones essentially starve themselves to death. It is different from having an eating disorder or being anorexic.

My understanding, when it concerns eating disorders and anorexia—let me get this right: are hon. Members trying to equate new clause 1 with that condition?

I think that one of the points being made is the difference between something that is active and something that is passive—for example, someone who chooses not to take that next level of chemotherapy because they have had enough, they have gone through a lot of it or it was painful, and chooses, in the example the hon. Member for Spen Valley just gave, not to eat and drink. That is one case, but it is very different from someone choosing to end their own life, which requires active participation and involves other people too. That would be the key difference, which I wonder if the Member for Bradford West agrees with.

I do agree. I also want to push back on the idea that it happens fairly regularly. I would welcome my hon. Friend the Member for Spen Valley giving us the evidence of where it says that, because that is not my recollection of the evidence we have gone through so far. I appreciate that we have not gone through all of it; there might be more that we have not seen.

On a point of clarification, under the Mental Capacity Act, if somebody decided to stop eating and drinking, we would let them do it until they became unconscious, and then their best interests would come into effect. We would take them into treatment if there were a risk to their life. Would my hon. Friend agree that that needs to be clarified?

This whole conversation has taught me that we are not on top of the Mental Capacity Act or the conversation about ability, which is why it is so important to have these conversations, even if it is just to try to get to the nub of the issue. Amendments that I will speak to later will clarify my position, but from the evidence I have heard, I will be supporting the amendment tabled by the hon. Member for Richmond Park. That is because the test needs to be much higher than the Mental Capacity Act on its own when it concerns the issue of choosing assisted dying. For that reason, I will support the amendment.

I thank the Committee for allowing me to reiterate the importance of a stand-alone approach. The use of the Mental Capacity Act must be questioned, as the Act was never intended to legislate for assisted dying. Much of what has been said in favour of using the Mental Capacity Act has been about it being tried and tested, so people understand it and to use anything else would make life complicated for professionals who use it as part of their day-to-day activities in assessing capacity. On the surface, those reasons do seem reasonable and make the Mental Capacity Act an easy option. If, however, the Act does not pass the threshold of meeting everyone’s needs, convenience should not be the deciding factor. Convenience cannot be considered a sufficient reason to use the Mental Capacity Act, as it is a fundamental element of the Bill. The Bill is in itself enough reason to have an alternative or stand-alone approach to determine an individual’s eligibility to be considered for an assisted death. Capacity is a complicated issue and cannot be oversimplified for convenience. The MCA may be fit for its current purpose, but it is not fit for the purpose of the assisted dying Bill. I have spent more than 20 years working on the equalities agenda, and one of the things that I have learned—this has been a consistent shortfall—is that we try to address new challenges with old solutions, rather than trying to meet the needs of the people we intend to serve. That is the reason why I will be supporting the amendment.

It is a pleasure to serve under your chairship, Sir Roger. As was noted earlier, the Government remain neutral. My role here is not to offer a Government view on the merits of the amendments but to provide a factual explanation of their technical and practical effect, to assist the Committee in its scrutiny. This group of amendments focuses on the concept of mental capacity. As drafted, the Bill, in clause 3, states that “references to a person having capacity are to be read in accordance with the Mental Capacity Act 2005”, with sections 1 to 3 of that Act establishing the principles and criteria for assessing a person’s capacity to make decisions. New clause 1, which would replace clause 3, and amendments 34 to 47, would collectively introduce the concept of an individual having the ability to make the decision to request assistance to end their life. A person’s ability would be determined by whether they could “fully understand, use and weigh the relevant information in accordance with regulations made by the Secretary of State”. That is intended to replace the term “capacity”, used in the Mental Capacity Act 2005, which provides a very specific definition of what it means to lack capacity in relation to a particular decision. A lack of capacity under this framework means that a person must be unable to understand, use and weigh information relevant to the decision, and that that must be directly caused by “an impairment of, or a disturbance in the functioning of, the mind or brain.” The “ability” proposal, as drafted, deals only with the use and weight of information.

To go back to the point I made this morning—I am happy to stand corrected, but nobody has disputed it—two issues continue to concern me in relation to the Mental Capacity Act and the code of conduct. The first is that the doctor would have a choice, under chapter 5 of the guidance, as to whether it is practical and appropriate to consult other people—with regard to learning disability, for instance. Also, we have not discussed principle 2 in chapter 2, which says that the doctor has to do everything practicable to try to help the person to make the decision for themselves, before concluding that they do not have the capacity to do so. The principal concern for some Members remains those issues in relation to the Mental Capacity Act, which have not been considered for this scenario. I would like the Minister to address them and the fact that that Act, which was written 20 years ago, was not written for this scenario.

The fundamental position of the Government is that the Mental Capacity Act as it stands is a known quantity. It provides the legal base for a whole range of measures and interventions, and the Government’s view is that it would be an adequate legal base to operationalise the Bill should it receive Royal Assent. Our position on it goes no further than that; it is simply a matter of fact that there is a piece of legislation that is a known quantity.

The Minister makes an important point. I just want to understand something. He speaks on behalf of the Government and says that the Mental Capacity Act is an adequate legal base as it stands. Perhaps the issue is just that I am new to the process—I am happy to be guided, Sir Roger—but we have not had an impact assessment. Normally, Bills do have impact assessments beforehand and the Government go out to consult; they have a consultation process. None of that has happened because the Bill is a private Member’s Bill. I am just trying to understand: is what has been said still true? How do the Government come to that conclusion without all those robust mechanisms that would normally go before a Government Bill?

As I set out from the Dispatch Box when we had the money resolution, the Government will publish an impact assessment before Report. Given that this is a highly dynamic Bill, with a whole range of amendments having been tabled, and that it is not really possible to publish an impact assessment on the basis of a Bill that has not cleared a Bill Committee, there is a simple point of sequencing. That is why we are going to publish the impact assessment after the Bill Committee has completed.

I was glad to hear what the Minister said about the Government accepting the Mental Capacity Act as a basis. We should remember that in 2005, that Act widened the availability of autonomy for individuals. We are discussing that here: how to enable autonomy for individuals. I also really welcome what the hon. Member for Bradford West said about impact assessments. Can the Minister commit now to an impact assessment specifically for Wales? The context of health and social care there is very different from that in England.

15:15:00

I thank the right hon. Member for her intervention. We have had a conversation about the need to ensure that the impact assessment has a clear and specific focus on the impact in Wales. I can absolutely assure her that either there will be a separate impact assessment for Wales, or we will ensure that the impact assessment that we produce is absolutely clear in terms of the impact that it will have in Wales; it will be one of those two. Personally, I am agnostic as to which of those it is. It is simply a question of what works best given the highly integrated nature of the conversation because the criminal justice aspects of it are a reserved competence, while health and care are a devolved competence. What is the best way to present that—having a single document or two separate documents? I am not entirely clear, but I have undertaken to check the matter with officials. I will get back to the right hon. Lady as soon as possible on that point.

I am very puzzled, on two grounds. The first is about the impact assessment. I simply do not understand the argument that the Government have to wait until the end of the Committee stage before they can have a view on the Bill and present it for Report. The fact is that the Bill could change again on Report, and the impact assessment would have to be updated further. Why on earth do we not have an impact assessment, which could advise the members of the Committee and the Government themselves on the appropriateness of the measures? That brings me to my second point of confusion: I simply do not understand what on earth the Minister means when he says that he is neutral about the clauses. He has just given the view, from his position, that he objects to the amendment and that he supports the use of the Mental Capacity Act. He is basing his view— I had understood that, as a neutral member of the Committee, he was not going to express one—on something. What is he basing it on? Secondly, how can he express a view when he is supposed to be neutral?

The Government choose when to bring forward an impact assessment based on the passage of the Bill through the House. We have had reports today about a very substantial amendment to clause 12 that may well be brought forward by my hon. Friend the Member for Spen Valley, for example. It is not possible for the Government to conduct and publish an impact assessment when quite significant changes are being made. I also gently point out to the hon. Member for East Wiltshire that this is not a Government Bill; it is a private Member’s Bill. It is also worth noting that it is unprecedented, as far as I know, to have oral evidence sessions for a private Member’s Bill, so we are already on relatively uncharted territory. It is also relatively uncharted territory to have, on a Bill Committee, Ministers who are neutral because the position of the Government is neutral. But that reflects the fact that this is indeed uncharted territory, so that is where we stand. The hon. Gentleman made a point about our own positions on the subject; I speak also for the Minister of State, Ministry of Justice, my hon. and learned Friend the Member for Finchley and Golders Green. It is a matter of public record that I supported the Bill on Second Reading. It is also the case that we vote, as members of the Committee, on the basis of our conscience because this is a matter of conscience; that is why the Government are neutral on it. There is no whipping from the usual channels. At the same time, we are articulating the position of the Government. The hon. Member for East Wiltshire asked how we come to that position. It is through the usual process of engaging with officials and experts in the field, and through taking into account all the considerations that the Government need to take into account for the operationalisation of the Bill. The Government then come to a view, and that is the view that I express when I am on the Committee.

The Minister says that the Government have made their own choice about when to do the impact assessment on the Bill. Does he not accept that it would have made sense to have done it before the Committee stage? Then, any evidence that the assessment threw up could have given rise to amendments tabled during the Committee stage—that would have made it an appropriate time to have done the impact assessment. The impact assessment could then always have been updated depending on how the Bill was then amended during Committee.

The hon. Member makes an interesting point. I simply reiterate that this is a very dynamic Bill Committee; I believe that 362 amendments have been tabled. Given the Government’s focus on establishing the Bill’s implementability, the coherence of the statute, the legal dimensions and the complexity of what we are dealing with, we took the position that it was better to wait for the Bill to clear Committee stage before producing an impact assessment. To do otherwise could have involved a large amount of second-guessing based on radical changes that might well have come out of the Bill Committee. I reiterate the logic of that sequencing. On the point about the established legal framework, which clinicians have been applying since 2007, “capacity” would still be used for other decisions about care and treatment. I turn to amendment 202, tabled by my hon. Friend the Member for Spen Valley on the advice of the Government. It ensures that the assessment of “capacity” is utilised by the assessing doctor, and corrects a typographical error in clause 9 to ensure that an assessment of capacity will apply consistently throughout the Bill. As I said earlier, how and whether the law on assisted dying should change is a matter for this Committee and for Parliament as a whole. However, I hope that these observations are helpful to the Committee when considering potential changes put forward.

I will try to keep my comments brief. It is excellent that we have had such a thorough debate on this particular issue, but I am also very conscious of time. I will do the quick and easy bit first. As the Minister has just said, amendment 202 is to correct a typographical error in the initial drafting of the Bill—despite the high level of expertise involved in the initial drafting of the Bill, that one managed to sneak through. The amendment would simply change the word “capability” to “capacity”, to be consistent with the rest of the Bill. I now come to amendments 34 to 47 and new clause 1. As we have discussed, those would replace the concept of “capacity”, which is based on the Mental Capacity Act, with a new concept of “ability”. I think that suggestion is coming from a good place and is made with good intention by the hon. Member for Richmond Park; I thank her for her positive engagement with the Bill. However, based on the oral evidence that we received, particularly from the chief medical officer and many other experts, the suggestion would seem unnecessary given that we already have—as has been discussed at length this afternoon—a very well established piece of legislation that is effective in this regard. The primary purpose of the Mental Capacity Act is to promote and safeguard decision making within a legal framework. As the CMO and other colleagues have said, issues around mental capacity “are dealt with every day, in every hospital up and down the country; every doctor and nurse above a certain level of seniority should be able to do that normally.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30, Q3.] That view was supported by Yogi Amin, an expert in Court of Protection work, human rights and civil liberties, who told us during the oral evidence sessions: “It is well understood how capacity assessments are done, and it is ingrained”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 140, Q176.]

We all understand the evidence of the chief medical officer and why he and others, including Members here, prefer the use of the Mental Capacity Act. It is understood by doctors and it is used every day. What this debate is fundamentally about is that assisted dying is not done every day. It is not something doctors are used to. As somebody who has said that she wants the toughest safeguards, it is incumbent on my hon. Friend the Member for Spen Valley to understand that what those of us who have concerns about the Bill are saying is that this is unusual. It is a step into the dark. The amendment tabled by the hon. Member for Richmond Park is about making sure that the issue is not just about what doctors are used to, but that there is another safeguard to ensure that people are not being exploited. Does my hon. Friend understand that?

I do. I take my hon. Friend’s comments on board and I will come to address them. As other colleagues have established, it would seem nonsensical to try to introduce a brand new legislative framework rather than use an existing piece of legislation that has stood the test of time. Indeed, Professor Laura Hoyano, emeritus professor of law at the University of Oxford, who has worked in civil liberties, human rights and domestic abuse, said: “It is interesting that a number of Members of Parliament who are practising physicians pointed out in the debate that they have to evaluate freedom of decision making and absence of coercion in many different medical contexts.” She talked about the withdrawal of medical treatment, as others have this afternoon, and went on: “It is considered to be a fundamental human right that lies at the heart of medical law that a patient has personal autonomy to decide what to do with their body and whether or not to accept medical treatment, provided that they have the capacity to do so...Doctors have to make those assessments all the time.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 30 January 2025; c. 227, Q289.] In the light of that evidence, it would seem unnecessary to create a whole new legal framework around the new concept of ability. However, although I think the Mental Capacity Act is the correct legal framework to use, I strongly agree with palliative care doctor Rachel Clarke when it comes to additional training on assessing capacity for the purposes of this Bill, which relates to the point made by my hon. Friend the Member for Banbury. She strongly encouraged us to give serious consideration to this matter, saying: “If there is one thing that I would say to the Committee regarding making the Bill as robust, strong and safe as possible, it is: please consider seriously the matter of education and training from day one of medical school onwards.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 71, Q85.] The CMO also suggested that training on capacity, as has been discussed, may require some slight adjustment. He said: “There is an absolute expectation within the Act, for example, that the more serious the decision, the greater the level of capacity that someone needs to have...That training should be generic, but may need some adaption.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 28 January 2025; c. 30-31, Q3.] I agree. As I have said, I think one of the best things about the Bill is the opportunity it gives us to develop gold-standard training around end-of-life care, end-of-life conversations and choice for terminally ill people. That should include training in assessing capacity specifically for the purposes of the Bill, for a decision that is clearly of such a high level of consequence and seriousness.

I absolutely accept what my hon. Friend says about training. I know we have separately discussed places in the Bill where we could replace the word “may” for “must” to make the safeguards stronger. However, I come back to the same points as I made to the Minister. The Mental Capacity Act code of practice, which I presume is what we will be relying on, says: “If it is practical and appropriate to do so, consult other people for their views about the person’s best interests”. However, it does not say “must”, and for adults with learning disabilities particularly, that remains a principal concern. Chapter 2 of the code of practice says: “It is important to do everything practical...to help a person make a decision for themselves before concluding that they lack capacity to do so.” I know this is not my hon. Friend’s intention, but that is the wording that would lead a doctor to have to help somebody make this decision. My question is: how will we overcome that issue?

That is a point worth making, and something we will look at through the amendments that my hon. Friend has proposed. I am very happy to look at those, as I have already said, but the idea of creating a whole new concept of ability seems wholly unnecessary in the context of a piece of legislation that has stood the test of time for over 20 years. I come back to training. Although the full details of the training programme that would accompany the Bill cannot be put on the face of the Bill, I have discussed the issue at length with officials in the Department of Health and I have included amendments to that effect. Amendments 186 and 198 specifically state that training must include assessing capacity and assessing whether a person has been coerced or pressured by any other person. Further comprehensive training will be included in regulations set out by the Secretary of State, and the chief medical officer is confident that that is the correct way to proceed. Furthermore, as has been referred to, there are multiple opportunities within the process to assess capacity by a range of professionals. I have also tabled new clause 8, which would create a duty for the Secretary of State to consult before making regulations relating to training. Within that, there would be a duty to consult not only the Equality and Human Rights Commission, which is important, but persons with expertise in matters relating to whether persons have capacity and whether persons have been coerced.

To go back to the point about multiple opportunities and capacity, my understanding from this morning’s Guardian is that an amendment has been tabled—it was mentioned earlier; I do not know whether others have had sight of it, but I certainly have not—on potentially having a panel instead of a judge. My hon. Friend the Member for Bexleyheath and Crayford has just asked a question, and my hon. Friend the Member for Spen Valley responded by saying that she would come back to it, but my concern is that we are looking at the clause now, and once we have discussed it there will be no going back to it. I am trying to understand at what stage in the process she will come back and fix it. If we are going to address it under clause 9, clause 8 or wherever, how will that impact on clause 1? How will it address the issues that we are debating right now?

15:30:00

At the moment, we are addressing the fitness for purpose of the Mental Capacity Act, but there are other amendments that will take on board some of my hon. Friend’s points, particularly about people with learning disabilities. I am very happy to look at that. I am working to table an amendment before the recess, to give the Committee an opportunity to look at it in great detail. My hon. Friend the Member for Bradford West is right that that would provide another opportunity for assessment of capacity with the involvement of psychiatrists and social workers, who have said that that is their expertise and what they excel in, and who feel that they have a valuable role to play in the process.

At what stage will we know how the amendments that my hon. Friend proposes have an impact on clause 1? If we make amendments later in the Bill, how will that have an impact on the amendments that we have discussed this morning, in particular in relation to capacity?

Clause 1 is very specifically about the Mental Capacity Act, on which we should get a chance to vote this afternoon. Other amendments can be tabled ahead of Report, but the fitness for purpose of the Mental Capacity Act is a concept on which we will get a chance to vote this afternoon. Other things can be added to the Bill that would enhance other aspects, but the point that we have discussed this afternoon is about the fitness for purpose of the Act. There are different views on the Committee, which is understandable. I believe that using the well-established legal framework of the Mental Capacity Act, introducing gold-standard training and consulting experts in assessing capacity will mean that there is no need to develop a whole new framework around the concept of ability, particularly on the points made by my hon. Friend the Member for Penistone and Stocksbridge. I therefore do not support the amendments.

The hon. Member for Solihull West and Shirley used an arresting phrase this morning: he said that to abandon the Mental Capacity Act would take us “into tiger country”. The concept appeals greatly to me, but what I would say to him and other Committee members is that it is the Bill itself that takes us into tiger country. It is unprecedented, and this is very new territory for legislation in this country. That is the tiger country, right there. If we are going to let those tigers out into the wild, we need to ensure that the British public, and particularly the most vulnerable members of it, have the right protections. That is what the amendment seeks. There was not a consensus among those who gave oral or written evidence that the Mental Capacity Act is a sufficient safeguard for the purpose proposed in the Bill. I am grateful to the hon. Member for Bexleyheath and Crayford for his speech this morning, which illustrated vividly for all of us how the Mental Capacity Act is used in practice. I particularly thank him for his personal reflection. Let me reiterate what the amendment seeks. The Bill proposes to judge mental capacity for a decision to request assisted dying in relation to the Mental Capacity Act 2005. There are elements of the Mental Capacity Act that are tried and tested, and should be retained in assessments of capacity in relation to this legislation, but as per the written evidence of the Royal College of Psychiatrists, the Mental Capacity Act is not sufficient for the purposes of assisted dying, because it cannot distinguish between those who suffer from a mental disorder and those who do not. It needs to be adapted for the purposes of the Bill. My amendment 34 would therefore substitute “capacity” with “ability” and reserve to the Secretary of State the power to define ability for the purposes of the Bill. To me, that is a pragmatic response. The debate in the Committee Room today reflects the lack of consensus among the experts who gave witness. That is why I think the matter is better resolved by those experts giving advice to the Secretary of the State, so the definition of ability can be expertly decided on. The difference between choosing assisting dying and choosing to end treatment was a big topic of debate both this morning and this afternoon. It goes to the heart of the different approaches that people take towards the Bill. I support the observation from the hon. Member for East Wiltshire that the difference is between dying of an illness itself, or dying of the effects of the approved substance, as laid out in the Bill. To me, that is a substantial and material difference, so our approach to establishing capacity should reflect that. The hon. Member for Reigate made an important point about the difference between a passive and an active choice. That very much reflects what I am trying to achieve through the amendment, which would allow us to strengthen the safeguards around the assessment of capacity. Given that there was not a consensus, among the experts who gave evidence, on whether the Mental Capacity Act is sufficient for the purpose, the pragmatic step is to allow the amendment to create the conditions under which a stronger safeguard can be adopted if necessary. Question put, That the amendment be made.

2|0|8|15|The Committee divided:|Question accordingly negatived.||0|0

On a point of order, Sir Roger. I wonder whether you can advise me. I am perplexed about the position of the Government Ministers. It is an absolute pleasure to have them here, but I am confused by this Jekyll and Hyde character. They seem to have two personalities on the Committee, voting as private Members but speaking as Ministers. I wonder whether there is any precedent for that in any private Member’s Bill, or indeed any Bill, and whether Parliament admits the split personas that they have. I totally understand the rationale for having Government Ministers here. It makes me query the whole concept of this being entirely a private Member’s Bill, but I recognise the role of the Government in it. However, if the Government want Ministers present at this Committee, there are Standing Orders that enable Law Officers to attend in their official capacity but not vote. That seems to me to be the appropriate way in which Ministers should be represented here. If they want to speak on the appropriateness of particular measures in terms of Government policy and applicability, that is perfectly appropriate, but I do not understand why they are also voting on this amendment in their capacity as private Members. I wonder whether you can advise me, Sir Roger.

Happily, that is not a matter for the Chair. However, let me make it clear that the two Ministers present are members of the Committee in their own right as Members of Parliament and are therefore permitted to speak and vote, as are all other Committee members. Were any Minister to feel that there was a conflict between their personal view and the view that the Government wish to express, my understanding is that that would be a matter for discussion between that Minister and the Government. More than that I am afraid I cannot offer.

Further to that point of order, Sir Roger. I thank the hon. Member for East Wiltshire for his question. Let us take this back to first principles. This is a private Member’s Bill. A Bill Committee had to be formed. The Committee was formed in discussions between the Member sponsoring the Bill, the Whips and the House authorities. The principle of formulating the Committee was based in large part on the steer given by the debate and the vote on Second Reading, which delivered a majority of 55 in the House. The numerical composition of this Committee was therefore based on that majority of 55, broadly speaking. My hon. Friend the Member for Spen Valley needed to put together a Committee that reflected that. The position was also taken that there should be Government Ministers on the Committee who had to speak for the Government with neutrality. It is with those two factors in mind that the Committee was put together. The two functions that my hon. and learned Friend the Member for Finchley and Golders Green and I have reflect the two purposes that were in mind when the Committee was put together.

Again, that is not a matter for the Chair. Points of order are not matters for debate; they are points of order.

My apologies, Sir Roger. It was just a point of clarification.

That is all right. Nevertheless, I am minded to refer the matter to the Clerk of the House for his consideration. This is no reflection on either of the hon. Gentlemen, or indeed on the Committee, but there are issues here that I think the Clerk of the House perhaps needs to consider in the broader context.

No, I am not taking any further points of order on the subject. I have made my judgment. If it is on a different matter—

It is not on a different matter. I didn’t think so.

I was just going to say that it is not unprecedented: it has happened before, in the Tobacco and Vapes Bill.

For the moment, we will leave it there.

On a point of order, Sir Roger. I am not sure that we have voted on amendment 202.

We will take it when we get to it. Thank you for raising that point, because this is a learning process for a lot of people. We decide on the amendment that is moved; we will then decide on any further amendments, if any Member wishes to propose them, in the order in which they appear in the Bill. In this case, that is not yet.

I beg to move amendment 353, in clause 1, page 1, line 12, at end insert “, and (e) is not a prisoner”. This amendment makes prisoners ineligible for assisted dying.

With this it will be convenient to discuss the following: Amendment 356, in clause 1, page 1, line 12, at end insert “, and (e) is not homeless within the meaning of section 175 of the Housing Act 1996 (Homelessness and threatened homelessness).” Amendment 354, in clause 7, page 4, line 12, at end insert— “(ea) is not a prisoner,”. This amendment is consequential on Amendment 353. Amendment 357, in clause 7, page 4, line 12, at end insert— “(ea) is not homeless within the meaning of section 175 of the Housing Act 1996 (Homelessness and threatened homelessness).” This amendment is consequential on Amendment 356. Amendment 355, in clause 12, page 8, line 9, at end insert— “(fa) the person is not a prisoner”. This amendment is consequential on Amendment 353. Amendment 358, in clause 12, page 8, line 9, at end insert— “(fa) the person is not homeless within the meaning of section 175 of the Housing Act 1996 (Homelessness and threatened homelessness).” This amendment is consequential on Amendment 356.

Me again, I’m afraid. The amendments in my name would exclude from eligibility people who are in prison and people who are classified as homeless. In this debate and in our evidence sessions, we have heard it said quite a lot that most people who opt for an assisted death in countries that have it are advantaged—they are middle-class, in our idiom—but the plan is to offer it to everybody; it would be a universal right. My amendments would address some of the most disadvantaged people in our country. I have had a very privileged life, but for 20 years I have run a charity working in London prisons; I spent about 10 years as full-time chief executive and have spent another 10 years as chairman. I have known hundreds of prisoners and ex-offenders, and I still do. Although I firmly believe in criminal justice—indeed, I think we need to be tougher on certain categories of offender—I recognise from my personal experience the dignity in all prisoners and the absolute necessity of respecting their dignity. In fact, I once wrote a speech for a Conservative leader of yesteryear that made some of those points and got headlined “Hug a hoodie”.

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While I recognise the dignity in all prisoners and the importance of taking an asset-based view—a phrase used earlier that I agree with—I also recognise their vulnerability. We can make excuses, as we often do, about the impersonal forces that cause people to commit crime, but crime is in many ways a means of expressing agency and of defying what the criminal feels is an unfair society. It shows that they can at least make an impact, and do something or get something that they want. It is actually an expression of a sort of twisted autonomy. Our response as a society, quite rightly, to that expression of autonomy is to take their autonomy away, deny them freedom and make them completely subject to the state.

It is no surprise that, with their lives in tatters and feeling completely unable to change anything for the better, so many prisoners self-harm or attempt suicide. Self-harm and suicide are the means to a recovery of agency—not one that we endorse, I am glad to say. Prison staff do everything they can to stop prisoners taking their own lives. The terrible fact is that suicide is the second-leading cause of death in prisons, and self-harm is rife. There are over 40,000 incidents of self-harm in prisons in a single year, which is equivalent to one incident for every two prisoners, according to research by the National Audit Office. A study by the Office for National Statistics found the risk of dying by suicide to be 3.9 times higher among male prisoners than in the general male population.

The case law of our courts and the European Court of Human Rights recognises the special duties of the state to prevent suicide in prisoners. Prisoners are an ageing and highly vulnerable population with less access to good care. The state is responsible for the delivery of healthcare in prisons. Prisoners are wholly in the care of the state. I suggest that, given their vulnerabilities and their dependence on the state, offering assisted dying to prisoners would be fraught with hazard. The risk of things going wrong is just too high.

Amendment 356 relates to people who are homeless. In countries in which assisted dying is legal, there have been significant concerns about homeless people receiving assisted dying. The chief coroner’s report last year in Ontario found that people in insecure housing were disproportionately likely to receive assisted dying. One woman had struggled to find a suitable accommodation for her medical needs, while her suffering worsened through loneliness and isolation. She applied for and received an assisted death.

Advocates of the Bill stress the sacred principle of autonomy, which I respect, but autonomy is not just in the mind. It is in someone’s circumstances; it is determined by the options before them. I challenge colleagues to consider whether someone who is homeless or a prisoner can genuinely be seen as autonomous enough to make a decision of this kind. For someone who is homeless or a prisoner, surely it is doubtful that the choice to go for assisted dying can ever be a fully free one.

I will conclude with a statistic about public opinion in Canada that I find terrifying. In the UK, polling shows that only 6% of British adults think that someone should be eligible for assisted dying if they are homeless. I do not place huge weight on polls about assisted dying, but I cite this one as interesting, because it shows the change that can occur. In Canada, which has had assisted dying for some years now, more than a quarter of people agreed that it should be offered to people who are homeless. Indeed, a quarter believed that it should be allowed for people who are just poor and want it.

I do not believe that there is some enormous difference between the culture of Canada and that of the United Kingdom, but it is significant that people here currently think that it would be wrong to offer assisted dying to people who are homeless, while 10 years after the law was introduced in Canada, a quarter of people there do. That indicates that the law is itself a teacher, which is one of my great concerns about the Bill: that it encourages people to think that the lives of certain categories of citizen are of less value.

Did the polling ask people’s view on whether terminally ill homeless people should have access to assisted dying, or on whether it should be offered to homeless people just for being homeless? That would seem very strange.

The hon. Lady might well be right. I totally take that point. I dare say it is people who are homeless. I think the question put was, “Should those who are homeless simply be able to ask for assisted dying?” People in this country say no. In Canada, asked the same question, a quarter of people say yes. The effect of the law has been to institute this principle of assisted dying being an acceptable choice under any circumstances, which is indeed, I am afraid, what happens. I will end with a powerful quote from Fazilet Hadi, who spoke to us representing disabled people. She said: “This Bill is not an abstract exercise; it will land in a society that is rife with inequality.”––[Official Report, Terminally Ill Adults (End of Life) Public Bill Committee, 29 January 2025; c. 185, Q242.] She said that the society the Bill will land in is the thing that needs to change, not the Bill. She thinks we need to change our society before we do anything like introducing assisted dying. I agree.

I should start by recognising that my hon. Friend the Member for East Wiltshire, who is my constituency neighbour, has devoted much of his adult life to public service. He should know that I have always admired him for that, and particularly for his work with the vulnerable and underprivileged in prisons. As he knows, I have spent much of my time in politics working with a similar population, so, like him, I understand their particular vulnerabilities. However, I oppose his amendments, and I hope he will bear with me while I enumerate why. I believe that there are some definitional problems with the amendments, as well as some quite serious moral and ethical problems, and they compound into a practical difficulty. The first definitional one is who exactly my hon. Friend means by “prisoners”. As he knows, not all prisoners are the same. Would he seek to deny assisted dying to prisoners on remand who have yet to be found guilty of a crime but are being held in advance of the criminal justice process? Would he deny assisted dying—which will be available to everybody else if the Bill passes—to people who are held in prison for not paying their council tax, for example, or for contempt of court? There is a variety of vulnerability in the criminal justice system, and prisoners are inside for different lengths of time and in different institutions. Quite a lot of white-collar criminals go to open prisons, for example. Would he seek to deny them? To me, if my hon. Friend’s objective is to protect vulnerable prisoners, the definition that he is using is far too wide. There are many people who may well find themselves in extremis while they are in prison and are likely to be released at some point, after a short sentence or because of the nature of their sentence, who would therefore have their ability to access assisted dying foreshortened. Similarly, when my hon. Friend speaks of homeless people and uses the definition in the Housing Act 1996, I think he actually means rough sleepers. The definition of homelessness that he referred to includes people who are staying with friends, people who are moving between homes and people who are likely to become homeless at some point in the future. It is a very wide definition, which covers a large number of people, some of whom would not necessarily be classified as vulnerable and may well be assessed as perfectly capable and have the capacity to make this decision. So my first point is that there is a definitional problem with the broad terms that my hon. Friend has chosen.

I accept those points. Nevertheless, the Bill itself has broad definitions and large exclusions—people who have more than a six-month prognosis, and so on. The Bill, I am afraid, operates in pretty broad brush strokes in order to try to defend large categories of people, so I think it is appropriate to exclude all people who are currently incarcerated—people who are in prison—whatever the reason or the length of their sentence, until they are released, and then they can start the process if they wish to and if they qualify. On homelessness, yes, we should use the official definition of homelessness, which basically means “in precarious housing”. The purpose of the Bill is to enable people who have full autonomy to make a decision in their own best interest. I think it is legitimate to ask whether people who are living in insecure accommodation, whose lives are in flux, who are experiencing extreme precariousness in their lives, should meet the appropriate criteria for autonomy that we wish to set out.

I was about to come on to the fact that those questions would indeed be asked through the assessment that takes place. As my hon. Friend knows—we have had a long discussion about it—the Mental Capacity Act relies to a certain extent on context to assess capacity. Turning to my hon. Friend’s point on prisoners, this may come as a surprise to him, but some people who are held on remand are found innocent and are released from prison. During their period on remand, which could be quite lengthy, they would be denied access to something they would not otherwise be denied access to.

My objection is not on the basis of criminality, innocence or guilt. I would not deny criminals this right because they are criminals. I would deny them what I regard as a dangerous opportunity because they are vulnerable. Whether guilty or not, whether they are on remand or not, they are in an equally precarious position and equally vulnerable, and that is why they should be excluded.

I understand my hon. Friend’s point, but we are talking about people who do not have much time. We have to remember throughout this debate that we are talking about people who have limited time; they have been diagnosed, and their prognosis is six months or less. In fact, the experience from overseas is that quite a lot of people come to assisted dying beyond six months. We are operating on the basis that suddenly everybody at six months decides they are going to apply for it. Quite a lot apply with just days or weeks to go; time is therefore important to them, and so it should be to us. I am concerned that the definitions interfere with that. Secondly, there is a distinct moral issue about the denial of services, particularly medical services, to groups of individuals based on their circumstances. We do not currently do that. We do not deny medical services to prisoners because they are prisoners. We believe it is a sign of a civilised society that they access the same healthcare as everybody else through our national health service. The same is true of those homeless groups. That includes allowing them to make the kind of decisions that we have talked about in the previous debate: decisions about life-threatening surgery and about the continuation of their life. It is certainly the case, as my hon. Friend will know from his work in prisons, that a number of prisons have developed hospice facilities within the prison to deal with end-of-life issues. Indeed those that do not have hospice care work closely with NHS palliative care outside and very often bring in specialists to deal with end-of-life issues in the prison.

Some incredibly important points have been made. I would like to give an example. Let us consider someone who is homeless. Perhaps they are staying with friends, as my right hon. Friend said. If they find themselves to be terminally ill, they may well face difficulties in accessing palliative care and getting the right treatments simply because they are homeless. This is about protecting that vulnerable group from choosing assisted dying simply because they are in a precarious and difficult situation and assisted dying seems like the best option in the light of lack of palliative care and their current circumstances. Would my right hon. Friend concede that that is what my hon. Friend the Member for East Wiltshire is trying to address?

I would certainly concede that; absolutely, I agree. The whole purpose of the safeguards in the Bill is to protect those who would be vulnerable, to ensure they have the capacity to make the decisions they want to make, and to ensure that they are making them for the right reasons. However, I think a lot of people would find it unfair and immoral that they were excluded not because of their own sense of themselves and their ability and capacity but simply because of their circumstances. As I am trying to point out, those who are homeless or prisoners in the widest definition of those words can find their circumstances changing quite significantly within the timeframe of six months. Given that they have only got six months under this Bill, we should not interfere with that and say, “Well, you are in; you are out.” This may seem like a narrow example, but imagine that somebody diagnosed with a progressive disease were to commit a criminal act and end up going to prison, and during their time in prison, they reach the six-month period. Are they to be denied assisted dying if it is available to everybody else in the population? To me, that would not seem morally right, particularly given that we have a duty to deliver, and we do deliver, end-of-life services to them in the prison to help them cope with those circumstances. As my hon. Friend will know, there are charities which provide end-of-life care in prison as well.

In the circumstances my right hon. Friend is describing, the prisoner would be eligible for the compassionate release scheme.

They would, yes.

That is what I hope would happen if it was necessary for the prisoner to be released in order to avail himself of opportunities on the outside. If he is terminally ill, that is what should happen.

I am very pleased my hon. Friend raised that issue, because I was about to come to the practical difficulties that this presents, for exactly that reason. As he rightly pointed out, for a large number of prisoners, subject to assessment of the safety of the public, if they contract a terminal disease in prison, as they reach the end of their life, they qualify for compassionate early release. Often, that is within weeks of their death—naturally, as one would expect. It is carefully reviewed by prison governors and, I think, has to be signed off by the Secretary of State, as a final control. The problem with denying them the services while they are in prison is that if they are eventually compassionately released, they may have only a matter of weeks or days to go through what will be quite an onerous process to avoid a horrible death.

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In broad terms, my problem with my hon. Friend’s amendments is that they effectively have the impact of denying a service available to everybody else to prisoners and homeless people because of their circumstances. That is not because of themselves or what is assessed of them, but merely on the basis of what they have become. It is, “You are a prisoner, and therefore you are out,” rather than, “You are not capable, you are vulnerable, and some context-specific assessment means that we would deny this to you,” which would seem more sensible to me. In fact, that is what the assessment in the Bill would achieve. That blanket denial threatens to truncate the time available to them if they are released or their circumstances change, and they wish to avail themselves of assisted dying. Taken together, the practical problem of the blanket denial of services to those people, and the moral issue of our differentiating health-related services for them, presents some serious difficulties.

There may be people out there who think that prisoners do not deserve it. That would be the flipside of the argument. I understand my hon. Friend is not making it; he wants to protect them because they are vulnerable. To me, however, that seems like a cruel and unusual punishment for people who are already serving time in prison, to whom we should not deny the same health-related services that everybody else receives. I will therefore oppose the amendments.

I support the amendment for a number of reasons. I have a huge amount of experience of dealing with women, domestic violence and prisons. The first time I came to this House was to lobby the then Labour Home Secretary to reduce my mother’s tariff, because she served 14 years in prison. When my mother was in prison, I was left homeless, so I have experience of that as well. I have experience of, while I was homeless, attempting suicide on two occasions, and I ended up having my stomach pumped. I therefore speak with a reasonable amount of experience in dealing with this. From a domestic violence point of view, which is why my mother killed an abusive partner, and having been a victim of domestic abuse, I also understand the vulnerabilities concerning women in particular—less so men, although I know the hon. Member for East Wiltshire has done a lot of work on that in his adult life. The majority of women who end up in prison—we have seen this from review of the courts, time and again—are victims of abuse, whether sexual, domestic or another kind. The majority of our women prisoners are in that position. The suicide rate among the population in England and Wales is 11.4 per 100,000, but for prisoners, that goes up to 108 per 100,000, which is nearly 10 times as high. We also know from research that one third of female prisoners in England and Wales self-harm. We know from the Home Affairs Committee report in the last Parliament on health in the English prison system that standards of health deteriorated in recent years due to budget reduction, loss of prison officers, staff shortages and overcrowding. We know that the Government have had to bring forward early releases, because the prison system is not fit for purpose after the cutbacks of the last 14 years. All this speaks to me of vulnerability. I hear the points that both the right hon. Member for North West Hampshire and the hon. Member for East Wiltshire have made that, in an ideal world, people should absolutely have equal access to healthcare, but the problem is that we are not in an ideal world. From my perspective, we have a prison system that has had to have emergency interventions since the Labour party came into government, because it is not fit for purpose. From a healthcare perspective, going back to what Dr Jamilla said and the numerous bits of evidence we heard about health inequalities, I know from a place such as Bradford West that people from ethnic minority backgrounds have less trust in healthcare services. I know that we do not have equity in healthcare services. As a former NHS commissioner, I know that those health inequalities impact on quality of life and that it is a postcode lottery. I am thinking about New Hall women’s prison in Wakefield and Armley prison, which is near Bradford. I am not familiar with London prisons, but I imagine the vulnerability of the women at New Hall. This comes back to the conversation about capacity: by some definition, they might have capacity. However, we also heard from eminent psychiatrists that when someone has a diagnosis, it impacts on their mental health. In this instance, we are talking about six months, which the right hon. Member for North West Hampshire referred to a number of times. In that six months, access to visitors might not come for another few weeks. A person might not even have a member of their family next to them when they get that diagnosis. They could well be innocent; they could well have been a victim of domestic violence and ended up in prison because they killed an abusive partner after years of abuse. They could be in a number of situations, but the one thing I concur with is the amount of vulnerability here, in particular for women, which speaks to the issues of capacity and coercion. It speaks to all the things that we are debating here, which is why I support this amendment: it would protect those who are vulnerable. If there was a diagnosis, prison systems would kick in. If someone was given less than six months to live, they would invoke compassionate grounds to leave the prison system, but I would be really uncomfortable seeing anybody in prison being given the option without that comfort. I cannot imagine being in the position of, say, my mum. I cannot imagine—I would not dare imagine; I do not think I could handle it—the idea of being taken away from my family and being incarcerated, rightfully or wrongfully, guilty or not guilty. I would be in a place, a system and an institution where, depending on which category of prison I was in, the institutional wraparound and the interventions are very different. It depends on the stage of the sentence that somebody is in. If they are in at stage 1 at a category A prison, there are much stricter rules and regulations. Imagine a person being faced with all that and finding out that they have six months to live. As the right hon. Member for North West Hampshire said, there is no guarantee that it is six months—more than 40% of those diagnoses do not turn out to be correct, and they could live longer. What would the impact be on that person? Could they make that decision? From a capacity point of view, I am not sure that that would exist.

The hon. Lady is feeling towards the point I was trying to make, perhaps slightly incoherently. The point is that in my view, whether or not those people have access to this service, it should be based on an assessment of them as themselves, including their mental capacity, particular characteristics and their settled will, just as it would be for everyone else under the Bill. The fact that they are, at that point, a prisoner impacts on the context in which their capacity is assessed, which must be the critical factor. Having a blanket ban on all prisoners, capable or otherwise, seems cruel, if I am honest. We know that prisons have to assess capacity in difficult circumstances. There are prisoners who decide to decline food and water and starve themselves to death. They are assessed as having capacity, if that is not the case, and in certain circumstances they are force fed, if it is seen that they do not have the capacity to take that decision themselves. In fact, the reason why prisons have created hospices within prisons is to deal with exactly such end of life decisions. If we are doing it for non-assisted dying, why would we deny people the choice and autonomy, having been assessed as capable of making the decision, to do it in prison? Worse than that, if we are going to release them on compassionate grounds, why would we give them a shorter period to access the service than anybody else?

I appreciate where the right hon. Member is coming from—I sincerely do. It comes back to the heart of the issue around capacity. We heard from the psychiatrist—her name escapes me, but she was on the right-hand side—that, where there is an increase of vulnerability, if somebody is told they would get pain relief, they would choose an alternative path. Those were similar words, and I will find the reference. My point is that we do not have equal healthcare access in prison. We provide prisoners with healthcare, but it is in no way equitable. The health inequalities that exist outside prison are bad enough. Palliative care is not fit for purpose in our country—it is a postcode lottery. Depending on which prison someone goes to, that will determine what kind of access they have to palliative care. It is not a level playing field.

I have a simple question: is it not illegal to deprive people in prison and homeless people of the same care that the rest of the population receives?

It would be if we were making treatment equitable, but if we apply the test of legality, and this is about pain—we have already seen the amendments tabled by the hon. Member for Harrogate and Knaresborough, which would widen the scope from six months to 12 months—where do we draw the line in terms of equity and legality? The Bill is open to a lot of legal challenges, and if we want to go down that route, there would be plenty of them.

There is a fundamental difference between trying to ensure that people have equal access to assisted dying and prohibiting a specific group or category. Does the hon. Member understand that?

I understand that perfectly well. On the idea of not giving people assisted dying, as the Bill stands, the category also includes people who decide to stop eating or taking insulin and people who decide not to go on dialysis. It includes a whole host of illnesses. If we are talking about the legal challenges, which my hon. Friend the Member for Stroud started with, the legal challenges for the Bill are vast as it stands.

I give way to the hon. Gentleman first.

On the point of legality, of course a law could be challenged under the European convention on human rights, but Parliament is sovereign. If Parliament decides to exclude a particular category, we in this place have to take this enormous responsibility—we make the law in this country.

I give way to my hon. Friend.

My hon. Friend has listed certain categories of people, and we will come on to the definition of terminal illness. I am confident that, given the definition of terminal illness in the Bill, some of the groups of people she has talked about will not be included in its scope.

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Where does it specify that? I know we are going to debate that subject later, but right now there is nothing that gives me assurance that those people will be excluded. Unless there is an amendment that my hon. Friend the Member for Spen Valley will support, the Bill, as drafted, would still apply to somebody if they decided not to carry on with treatment, or if they decided they did not want to take their insulin or other medication and that would lead to their death. I am happy to give way to my hon. Friend so that she can explain how she is going to deal with that.

I will. Let me read from the Bill. The definition of “terminal illness” under the Bill is that “the person has an inevitably progressive illness, disease or medical condition which cannot be reversed by treatment”. The conditions that my hon. Friend is describing can be reversed by treatment and are not inevitably progressive. We will come to that debate in due course, but that definition is crucial.

I beg to differ on the wording that my hon. Friend just used. It actually makes my point. As it stands, if I were an insulin-dependent diabetic—and I have been so on three occasions, with my children— I could say that if I stopped taking that insulin, I would become terminally ill. In the Bill as it stands, and as it is drafted, I would meet the criteria.

My hon. Friend would not meet the criteria. She might be describing a condition that cannot be reversed, but it is the “inevitably progressive” part that we are talking about. Because it can be treated, it is not an “inevitably progressive illness, disease or medical condition”.

Order. A debate about the definition of “terminal illness” will come later in the Bill, and it might help us all if we were to swiftly move forward to that point.

Absolutely—we will come back to that conversation.

My hon. Friend the Member for Stroud, in his rebuttal to my hon. Friend the Member for Bradford West, described assisted dying as “medical care”. Personally, I do not regard assisted dying as medical care. Does my hon. Friend agree?

I am still having that debate in my head, and I am not convinced. I will not digress—I will come to the point—but there is a conversation about whether it is “treatment”, “assisted suicide” or “assisted death”. Those terms have been bandied about. I genuinely think that, ultimately, we have to use the word “suicide” because we are amending the Suicide Act 1961. I appreciate the context in which the promoter of the Bill puts it forward, but the truth is that it is about taking one’s life, so that is how I respond to that question. To come back to the amendments tabled by the hon. Member for East Wiltshire, the reason why I will support them is that I have way too much experience of people in vulnerable positions, and I have a lifetime of experience of seeing what happens. I do think there are options when somebody has a diagnosis of terminal illness. The prison systems are set up to be able to give them compassionate leave and to explore other avenues. Once they are outside that system, they can access support and have their vulnerability reduced.

Will the hon. Lady help me to understand her position? Is it a fundamental disagreement with any prisoner having access to assisted dying, or is it a fundamental issue with completing the final act, as set out in clause 18, while being a prisoner? For example, the hon. Lady touched on early release on compassionate grounds. Under those circumstances, there may be a prisoner who has been given a six-month diagnosis, and their early release may not be until the last couple of weeks of their life. Should they be deprived of going through the process and the assessment, albeit not enacting the final act until they have been released?

Yes, I think there should be a deprivation of that final act, because there are vulnerabilities with that prisoner while they are inside a prison. What they need is not an option of assisted death at that point. That speaks to the amendment that I tabled, which is about making sure that we do not have the conversation in the first four weeks in any case, because a diagnosis of terminal illness affects people’s mental capacity and mental health. We know that: we have heard it from the psychiatrists. It is common sense; it does not take a genius to work it out. We know that people in prison have additional vulnerabilities. We are having a debate about the issue of capacity, which we have clearly not agreed on. A person-centred care package needs to be about supporting the person, removing vulnerabilities, giving autonomy, and offering choices around accessing palliative care and medication, so that they are in a much stronger position to make an informed choice.

I am grateful to the hon. Lady for allowing me to intervene again. Can she not see that by supporting the hon. Gentleman’s amendment she is basically defining all prisoners as de facto vulnerable? It is not the case. Although many are vulnerable, both my hon. Friend the Member for East Wiltshire and I have met a lot of criminals and prisoners in our time, and quite a lot of them are smart, capable people who made a stupid decision. They are not vulnerable; they deeply regret what they did and go on to live perfectly functional lives. We should be applying to prisoners exactly the same criteria of assessment—around capacity, vulnerability and settled will—at the time they are diagnosed with a terminal disease as we do to everybody else, because if we are not going to differentiate among prisoners, in many ways we are dehumanising the entire population. We are saying, “You are all vulnerable—no question—and we are excluding you completely on that basis.” As the hon. Member for Harrogate and Knaresborough said, that is in many ways a fundamental denial of a basic human right.

The idea that it is the fundamental denial of a human right is not quite correct. We are talking about the denial of a provision in a Bill that has not come into law. It is a potential legal position; it is not necessarily a human right yet. If the Bill comes into force, at that point it becomes an option that could be denied. There are many prisoners. Prison serves many purposes, one of which is to reform. There will be many prisoners who go in there and get a degree in criminality because they are surrounded by other prisoners. There are people who make choices. In the first four weeks we should not have the conversation around assisted death in any case. I have tabled an amendment to that effect and will speak to it when we come to it. In the meantime, a person has an added layer of pressure if they are in prison. It does not mean that everybody is necessarily vulnerable from a starting position. I agree that there may be prisoners who are not vulnerable, but there is an added pressure if somebody is homeless or in prison, not having family or security, that would no doubt compound their mental health. Whether that is a slight or a large impact is for somebody else to assess, but as it is I support the amendment.

I can understand where the hon. Lady is coming from, but I wonder whether she has any specific examples of groups such as people who are homeless or prisoners having other rights denied to them. That is what I am struggling with, although I can understand her point about people being vulnerable. The only other example that strikes me is that people who are incarcerated are unable to vote. I cannot think of any other instance where people would have any particular right removed from them. Does the hon. Lady have any other examples or comparable situations she can share to help us?

I do not have any comparable situations; this is uncharted territory.

Prisoners are denied their liberty, not just their vote. They are treated as a single class of people who the state has specific responsibilities for, because it essentially owns them for the time that they are incarcerated. Prisoners have particular protections, but they are also denied a whole range of human rights and opportunities that the rest of society can have. It is not inappropriate to treat prisoners as a distinct class of people to whom the state has a specific responsibility.

The hon. Gentleman clearly has more recent experience of prisons than I have—thankfully. In closing, I will be supporting his amendments to protect people who are vulnerable in prison and people who are homeless.

I want to contribute to this discussion based on my experience as a mental health nurse. I worked in mental health services for 22 years, including managing a medium secure forensic unit. I have worked with many homeless people and people who were detained under the Mental Health Act by the criminal justice system in those medium secure units and who had been involved in criminal activities. With my experience, I can categorically say that that group of people is very vulnerable. As the hon. Member for East Wiltshire said, self-harming and suicidal tendencies are very high among that group. As part of the risk assessments that we carry out in the mental health system, one of the questions is whether they are homeless. That question is asked to identify that vulnerability. These amendments bring up the importance of a psychosocial assessment, which was highlighted in many pieces of our oral evidence. If we are looking to bring more safeguards into this Bill, that is something we should consider to safeguard this group of people. I want to make one more point about what the right hon. Member for North West Hampshire said: not all homeless people are homeless in the same way; some people choose to sleep rough. I am not clear whether, if somebody is sleeping rough and is diagnosed with a terminal illness, we are looking to bring them back into an NHS bed to assist them to die. I do not know whether there is a provision to identify how we would manage those sorts of situations.

I was not necessarily saying what the hon. Member said that I said—that all homeless people are the same. However, it is the case that, for rough sleepers in particular, a number of charities, such as St Mungo’s, have had to develop on-street palliative care services for the rough sleepers who sadly do contract terminal diseases or are reaching the end of their lives. Very often, part of that service is to try to encourage them to come into some kind of institutional environment, such as a hospital, where their healthcare can be better served. It is a particular difficulty with that group, and there is a high incidence of mental health problems among the street homeless—not homeless people generally, but the street homeless—but that, in my view, would be caught by the general assessment that takes place. In fact, the hon. Member may be interested to know that there is quite a lot of on-street mental health assessment taking place for people. People who are living on the street develop all sorts of disorders—indeed, there are often people with quite significant mental health problems on the street—and they are dealt with as closely as possible to the front end. Therefore, it would not be beyond the capability of the state to make assessments about individuals that are appropriate to the context. I am trying to stress the point that we need to see the person as an individual, as well as within their context. With a blanket ban on particular groups, the human right that I was referring to is denied—it denies them the right to be seen as an individual and assessed as an individual, which is what we do in every other service that we provide to them.

I thank the right hon. Member for that intervention. To clarify, not all patients who are diagnosed as terminally ill are necessarily bedridden. They may be capable of carrying out their day-to-day activities as normal, even though they have been diagnosed with a terminal illness and have been given a prognosis of six months. They may still be walking around. Not everybody needs palliative care, in fact. My question was: if somebody who is a rough sleeper is diagnosed with a terminal illness and they want help with assisted dying, will we make provision to bring them back into an NHS bed to facilitate their dying? It would be great to have that clarification. I support the amendment, as I have seen many highly vulnerable people who would be more likely to choose the path to end their life if they were given the option.

16:30:00

The amendments relate to the criteria that individuals would need to meet to request assistance to die under the Bill. All the amendments seek to amend the eligibility criteria in some manner. To reiterate, the Government have no view on the policy questions pertaining to the amendments, and my role here is to offer observations on the legal and practical impact of amendments tabled. The legal impact of these amendments will be the main focus of my remarks. Amendment 353 seeks to make prisoners ineligible for assisted dying services even if they meet the definition of having a terminal illness. Amendments 354 and 355 are consequential amendments that would make it a requirement for the co-ordinating doctor in the first assessment and the court process to ascertain whether a person seeking assistance to end their own life is a prisoner. Aside from the right to liberty, article 5 of the European convention on human rights requires that prisoners should have the same rights as those who are not prisoners. The rights engaged by the amendment are article 8 on the right to respect for private and family life and article 14 on the protection from discrimination. Making prisoners ineligible for assisted dying would, on the face of it, lead to a difference in treatment between prisoners and non-prisoners that would need to be objectively and reasonably justified. The justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim.

I note that the Minister used the word “treatment” twice, but we are not talking about a treatment; we are talking about assisted death. I think someone mentioned earlier that it is a treatment, but it is not a treatment, is it? I would welcome his clarification on that.

I thank my hon. Friend for that intervention. My understanding is that it is termed as a treatment under the law. The Government do not take a view on the semantics of the word; my understanding is that that is how it is classified under the law.

It is really important that we establish whether this will be defined as a treatment or indeed as something quite distinct in law. My understanding is that the word “treatment” should never apply to assisted dying. I would be grateful for the Minister’s clarification.

I apologise; I think I misunderstood the intervention of my hon. Friend the Member for Bradford West, so my comments were not clear. I meant the treatment of this matter under the law. As I said, the justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim. That means the way in which the matter is treated under the law. That is what I meant; I think we got our wires crossed. Finally, let me address amendments 356, 357 and 358, whose purpose is to exclude those who are homeless within the meaning of section 175 of the Housing Act 1996 from the definition of a “terminally ill person”. The effect of amendment 356 would be to amend the definition of a “terminally ill person”, as set out in clause 1 of the Bill, to expressly exclude a person who, notwithstanding that they met all the other requirements set out in paragraphs (a) to (d) of subsection (1), was homeless within the meaning of section 175 of the Housing Act 1996. Amendments 357 and 358 seek to make consequential amendments to clause 7 on the first doctor’s assessment and clause 12 on court approval. These amendments would require the co-ordinating doctor and the court to be satisfied that, in their opinion, the person was not homeless within the meaning of section 175 of the Housing Act 1996 before making their statement or declaration to allow the person to proceed to the next stage of the assisted dying process. Article 14 states that the rights set out in the ECHR should be secured for everyone without discrimination on any ground. This amendment engages article 8 on the right to respect for private and family life. Making those who are homeless ineligible for assisted dying would lead to a difference in treatment that will need to be objectively and reasonably justified. The justification test requires that the treatment in question is a proportionate means of achieving a legitimate aim. I hope these observations may be helpful to Members in considering these amendments and making a determination about who should be eligible for accessing assisted dying services, should the Bill pass.

What an interesting debate—I am grateful to all hon. Members who participated. I am interested in what the Minister was saying about the ECHR. Notwithstanding my general point about the sovereignty of Parliament, when Lord Sumption gave evidence to the Committee two weeks ago, he stressed the wide margin of appreciation given to member states on the ECHR. Does the Minister think that that will apply in this case to ensure that the British Parliament could vote to exclude these categories of people? If his view is that the Bill could be subject to challenges on discrimination grounds, however, particularly under article 14, I think we will have a lot of problems in applying the Bill. I wonder whether, in due course, we will be able to tease out how the ECHR will intersect with the Bill. As the Minister says, the crucial point is that any discrimination must be justified on the basis of achieving a legitimate and proportionate aim. My suggestion is that there is an absolutely legitimate aim, and that this is a proportionate means of achieving it. The debate got quite philosophical, which I found very interesting. I observe that my constituency neighbour, esteemed colleague and great Conservative, my right hon. Friend the Member for North West Hampshire, has a vision of our particular political creed that is entirely individualistic. He stresses the absolute importance of individual autonomy, treating everybody as an individual without reference to the context in which they live. I suggest to him, and to the Committee, that our freedom and autonomy depend on our relationships. Our autonomy proceeds from our socialisation. We do not emerge fully formed into the world with all our values and attributes; we acquire them by virtue of the people around us. The crucial thing about the prison experience is that it disrupts the relationships that can make an individual genuinely free. Homelessness does likewise, and it sets up all sorts of new relationships and new socialisations that can often be very negative.

I am grateful for my hon. Friend’s kind words, but he will know that the foundation of our beliefs stretches from Magna Carta through to Mill and is based on a legal notion that I am to a certain extent my own island—that I have autonomy over myself. From habeas corpus to making decisions about my own medical treatment, I should have rights. That is not to say that my decision-making capacity should not be assessed within the context in which I live. What I was trying to communicate to my hon. Friend and his supporters in respect of this amendment is that I think it profoundly wrong to paint all prisoners with the same brush and see them as a homogeneous whole, rather than seeing them for the individuals they are, specifically when they are taking a very individual, personal and private decision about their own life and death.

I trace our liberties to an evolution of British law, and of English law, that recognises the essential nature of our individuality as being socialised. We belong to one another and we derive our freedom from other people. Our autonomy, Magna Carta and all the liberties of the individual proceed from that. None of us, no man, is an island. That is what I suggest to my right hon. Friend. His point was about treating everybody as solitary individuals, making independent private decisions. That is not the way any of us operate; it is certainly not the way people in the most vulnerable circumstances operate. What actually happens is that we are heavily influenced by the people around us, by our circumstances and by the choices before us. To descend from the abstract, let us consider an actual case, albeit a hypothetical one. Someone is in prison. They have committed some crime, or they have not committed a crime but have been remanded. Their whole family life has been smashed to pieces over the years, or just recently. They then get the terrible diagnosis of a terminal illness. A doctor says to them, because they are allowed to do so under the Bill, “You know, one of your options is an assisted death.” I think that that would be incredibly influential, to the point of serious concern, for those of us who know how vulnerable people in prison are. The same applies to people living on the streets, the people my right hon. Friend was describing.

I believe that what the hon. Member has just espoused, and what has prompted this amendment, is the sort of thing that would have come out if we had had an impact assessment. If this were a Government Bill, some sort of consultation would have flagged up the potential issues ahead of the next stage. I believe that that is the exercise in which he is engaged. We have been promised a Bill with the strongest possible safeguards. He comes from a position similar to mine, which is that there is no stronger safeguard than preventing people from having assisted dying. I believe—I am happy to be corrected—that what he is trying to do in the absence of that is flag up potential issues that mean that more safeguards are needed than are being offered in this Bill. Is he prepared to comment on that?

The hon. Gentleman is absolutely right. Once again, it is a shame that we are feeling our way in the absence of that assessment. Nevertheless, I think we all have experience and we can draw on the evidence. The hon. Member for Bradford West made a very powerful point, and she was absolutely right. I spoke earlier about the evidence on suicide among the male prison population; I have experience of working with women in prison as well. There is a genuine danger of chronic, almost epidemic, self-harm among the female prison population. Likewise—this is a fact that we need to bear in mind throughout the debate—suicide is itself contagious. That is why it is so important to discuss it in a responsible way. The option—I use the term advisedly—of assisted suicide is itself dangerous in the context of a prison population in which these ideas are contagious. My right hon. Friend the Member for North West Hampshire talks about the need to assess each case on its own merits, individually. I recognise that, and in principle of course that is what we should be doing. Nevertheless, that assumes that the safeguards in the Bill are adequate to the challenge of dealing with people in such particularly vulnerable circumstances. I am concerned that they are not adequate anyway. I believe very strongly that they are not appropriate to people in these circumstances and that therefore it is appropriate to have what he calls a blanket ban. As I said in an intervention earlier, we have to treat particular classes of people in the same way. We do that all the time, with respect specifically to the prison population. The fact is that we have to draw the line somewhere. We are drawing the line in all sorts of places in this Bill—around the age limit and around diagnosis and prognosis. I think it would be very appropriate, given the extreme vulnerability of these populations, to draw it around them and protect them from the vulnerabilities and dangers that I think all Members recognise might apply in certain circumstances. They will apply in heightened likelihood to these populations. I do not propose to press these amendments to a vote, but I am grateful to hon. Members for the points that they have made, and I hope that the concerns have been noted. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Amendment made: 179, in clause 1, page 1, line 13, after “provided” insert “in England or Wales”.—(Kim Leadbeater.) This amendment limits the assistance that may be provided in accordance with the Bill to assistance in England or Wales.

I beg to move amendment 109, in clause 1, page 1, line 17, after first “and” insert “demonstrably”. This amendment reflects the changes in Amendments 110 to 112 that change the requirement from having to establish that a person who wishes to end their own life under the Act has clear, settled and informed wish, to a clear, settled and demonstrably informed wish.

With this it will be convenient to discuss the following: Amendment 110, in clause 7, page 4, line 13, after “and” insert “demonstrably”. This amendment requires the coordinating doctor to ascertain whether, in their opinion, the person has a “demonstrably” informed wish to end their own life. Amendment 111, in clause 8, page 4, line 36, after “and” insert “demonstrably”. This amendment requires the independent doctor to ascertain whether, in their opinion, the person has a “demonstrably” informed wish to end their own life. Amendment 112, in clause 9, page 6, line 13, at end insert— “(da) be satisfied that, in their opinion, the person has demonstrated their understanding of the matters in subsections (2)(b) to (2)(d).” This amendment requires the assessing doctor to be satisfied that, in their opinion, the person has demonstrated their understanding of the matters that have to be discussed and the information provided under subsections (2)(b) to (2)(d).

The amendment would strengthen the Bill by establishing a benchmark for the level of understanding of assisted dying and its process that the person needs to demonstrate to start the process. That will help to ensure that the person requesting assisted dying understands what they are asking for, so that doctors and other professionals can be assured that those who are engaged in the process have come to their own informed choice. Being informed conceptually is meaningless; it adds nothing to the Bill unless we can establish that the person can demonstrate to healthcare professionals and others that they understand assisted dying and the process.

16:45:00

I understand what the hon. Member for Broxtowe is trying to achieve, but I believe that her amendments are unnecessary. “Demonstrably” is a word that is commonly used in British law, effectively to emphasise that something is important, but also to ensure that something is proven. She will have seen that I have tabled amendments to the Bill to require two declarations to be produced: one by the patient, to say that they have had the conversation about all their options, understand their options and understand what their prognosis is likely to be; and one by the co-ordinating doctor, to say that they have had the conversation and that the patient is in full possession of all the facts they need and understands what has been communicated to them. My view is that those declarations, as well as the assessment that the doctor has to go through to confirm that the person has a settled wish to do this, are enough to show that the person demonstrably wants to access the service for themselves. I am concerned that amendment 109, like other amendments that we will debate later, would insert into the Bill a series of individual words that will unnecessarily complicate its contemplation by doctors. We heard in evidence that for the Bill to work, it needs to be simple and understandable by everybody who is dealing with it. The more we can minimise the number of words that may be open to interpretation by lawyers —and we certainly have plenty of lawyers in the room— the better. From that point of view, I will oppose the amendment. I understand what the hon. Lady is trying to achieve, but I believe that we have achieved it by different means.

The amendments in the name of my hon. Friend the Member for Broxtowe relate to an individual who seeks to access assisted dying services demonstrating their wish to end their own life and demonstrating their understanding of the process by which that happens. To support the Committee’s deliberations, I will briefly summarise the Government’s analysis of the effect of the amendments. Amendments 109, 110 and 111 would modify the requirement that the co-ordinating doctor and the independent doctor must undertake an assessment to ascertain whether, in their opinion, the person has a clear, settled and informed wish to end their own life. That would be amended to require the person to have a clear, settled and demonstrably informed wish. The term “demonstrably” would not provide further practical guidance beyond the words already in the Bill and could create uncertainty as to what constitutes being demonstrably informed. I turn to amendment 112. Clause 9 currently provides that the co-ordinating and independent doctors must explain and discuss a number of matters with the person being assessed. These matters are set out in clause 9(2)(b), (c) and (d). In the interests of time, I will not go through each of those matters, but they include an explanation and discussion of the person’s diagnosis and prognosis, any treatment available and the likely effect of it, and the further steps that must be taken before assistance can lawfully be provided to the person under the Act. The amendment would create an additional requirement for the co-ordinating and independent doctors. It would require them both to be satisfied that, in their opinion, the person seeking assistance has demonstrated their understanding of the matters that have been discussed under clause 9(2)(b), (c) and (d). The amendment does not specify in any further detail what the doctors would be required to look for to satisfy themselves that a person has demonstrated their understanding. That would be left to their professional judgment, with training, support and guidance, as with other concepts in the Bill. The amendment would leave it to the co-ordinating and independent doctor’s professional judgment to determine what “demonstrated their understanding” looked like in respect of each individual person. I hope that those observations are helpful to the Committee.

I have just a few points to make. I very much applaud the hon. Member for Broxtowe for her amendment, which would genuinely—demonstrably, I might say—strengthen the Bill. It does not seem in any sense hostile to the principle or purpose of the Bill; it supports it. To make a gentle criticism, I think that there is a concern about the lack, throughout the Bill, of a proper trail of documentary evidence following the applicant through the process. For example, the two conversations with the doctor would take place behind closed doors, and no record of their discussion would be made. I do not think that conducive to trust. There is no way to assess whether the safeguards are actually in operation.

I am afraid that that is not actually correct. If my hon. Friend is willing to look at my amendments—I appreciate that he might not have got to them yet—he will see that one of them would require the doctor to produce a report on their assessment of the patient. Obviously a two-way declaration would also be required that the conversation pursuant to clause 4(4) has taken place and that in the doctor’s view the person is in possession of all the facts that they need in order to make the judgment that we are asking them to make. That detail and documentation will be inserted into the Bill if my amendment is agreed to.

I am grateful to my right hon. Friend. I particularly applaud his amendment’s aspiration to ensure that the doctors’ conversations are properly recorded.

Further to the comment from the right hon. Member for North West Hampshire, all of that will obviously be recorded on the patient’s medical records as well. The idea that it is not being recorded is just not correct.

The decisions will be recorded, but the conversations that the hon. Lady stipulates should take place under the Bill need further recording, in my view, with further evidence of what was discussed in order to ensure that the safeguards have been properly applied. I also point out that for the chief medical officer to effectively carry out the review under clause 34, they must have evidence available, not just a few schedules that have been signed off. Likewise, I am glad to say that the opportunity remains for a legal appeal, in so far as we still have a judicial process, but I am concerned that the lack of any documentary evidence makes the application difficult for any external party or the Court of Appeal to review. Currently, there is a great paucity of information that the High Court judge considering the application can request. I think it is important that the High Court judge—or, indeed, the panel, if we move to that approach—should have access to a much fuller range of documentation to ensure that the process has been properly followed.

The hon. Member makes a valid point about ensuring that there is documentary evidence. Does he not feel that that will be covered at a later point in the Bill when we debate the amendments on training, and specifically on ensuring a coherent way in which all the doctors and people in the process set about recording?

The hon. Gentleman is a great stickler for doing things in the right order. I am grateful to him for calling us to order on that point again. I dare say that he is absolutely right. All these issues are rather interwoven through the Bill. I will finish on a point about the role of the Court of Appeal. A rejected application—although not an approved application, I am sorry to say—can be appealed under clause 12. For the Court of Appeal’s review to be substantive, it must surely be able to review the evidence as fully as possible on what happened throughout the terminally ill person’s application.

I still think that it is important to add “demonstrably”. The word should be included; I do not see that it would create any additional confusion. The right hon. Member for North West Hampshire said that he had tabled some amendments later on in the Bill. However, that is later on. Putting in “demonstrably” here would strengthen his proposal.

Does my hon. Friend share my frustration that when the Minister says, “This is the Government’s position,” he says so in the absence of an equality assessment or impact assessment? I appreciate that the Government have outlined that the process is different, but in the absence of those assessments, where do we find the weight to support those positions?

I absolutely agree. The word “demonstrably” could produce that weight. It could add to every other part of the Bill that a person must be able to demonstrate to health and social care professionals that they understand what assisted dying is and understand the process that will be gone through. The person needs to be able to demonstrate to other professionals that they understand. A written report by a health or social care professional is not enough; the person themselves will have to demonstrate that they have a full and clear understanding.

Does the hon. Lady wish to press the amendment to a Division? It is her call.

I will not push it to a vote, Sir Roger. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Ordered, That further consideration be now adjourned. —(Bambos Charalambous.)

16:57:00

Adjourned till Wednesday 12 February at twenty-five minutes past Nine o’clock.

Written evidence reported to the House

TIAB 109(a) Complex Life and Death Decisions Group, King’s College London (supplementary)

TIAB 110 Royal College of Nursing (supplementary)

TIAB 111 CARE (Christian Action Research and Education)

TIAB 112 Letter from Sarah Olney MP to Alex Ruck Keene KC (Hon) and subsequent follow-up response

TIAB 113 Professor Colin Rees

TIAB 114 Association for Palliative Medicine of Great Britain and Ireland (supplementary)

TIAB 115 Scottish Christian Forum on Assisted Dying

TIAB 116 St Christopher’s Hospice

TIAB 117 Medical Defence Union

TIAB 118 Dr Liam Gabb, King’s College London

TIAB 119 Dr Alex Hughes, King’s College Hospital

TIAB 120 Dr Anna Folwell

TIAB 121 Rev. Canon G. Roger Harper-Allen

TIAB 122 Dr Kevin De Sabbata, Professor Anthony Wrigley, Dr Abigail Pearson, Dr Dunja Begović and Dr Sotirios Santatzoglou (Keele University)

TIAB 123 Diana L. Barnard, MD

TIAB 124 Professor Julian C. Hughes

TIAB 125 Professor David Paton, Nottingham University Business School

TIAB 126 Sue Ryder

TIAB 127 Kennedys

TIAB 128 Pro-Life Victoria

TIAB 129 Professor Derick T. Wade

TIAB 130 Dr Leonie Herx, Dr Harvey Chochinov, Dr Ramona Coelho, Dr Catherine Ferrier and Dr Ebru Kaya

TIAB 131 Chelsea Roff, Catherine P. Cook-Cottone PhD and Agnes Ayton MD FRCPsych (supplementary)

TIAB 132 Charles Warlow FRSE, Emeritus Professor of Medical Neurology, University of Edinburgh

TIAB 133 Dr Jess Kaan (supplementary)

TIAB 134 Rowcroft Hospice

TIAB 135 Dr John E. T. Pillinger MB ChB MA

TIAB 136 Dr Sarah Davies

TIAB 137 Dr Tom Pembroke and Dr Clea Atkinson

TIAB 138 Dr Carl Counsell, Clinical Reader and Honorary Consultant Neurologist

TIAB 139 Dr Stephen Dyer

TIAB 140 Dr Paul Shaw

TIAB 141 James Catmur

TIAB 142 Dr Matthew Doré

TIAB 143 Dr Christopher Ohlsen

TIAB 144 Margaret Flynn, Chair, National Mental Capacity Forum

TIAB 145 Dr Michael Dobson

TIAB 146 Dr Chris Ainsworth

TIAB 147 Professor Dominic Wilkinson

TIAB 148 Iain Brassington, Professor of Applied and Legal Philosophy, CSEP/Law, University of Manchester

TIAB 149 Professor Bill Noble

TIAB 150 Frances Levett

TIAB 151 Dr Jennifer Bryden MBChB (Hons) BSc (Hons) MRCPsych

TIAB 152 Colin Myerscough

TIAB 153 Dr Jennifer Klimiuk

TIAB 154 Dr John Barker

TIAB 155 Dr Toni Saad

TIAB 156 Friends at the End

TIAB 157 Andrew Bunting

TIAB 158 Pauline Carroll

TIAB 159 Joanne Parkes

TIAB 160 Stephen Foster

TIAB 161 Ruth Hughes

TIAB 162 Mary Warrell

TIAB 163 Dr Julie Barker

TIAB 164 Dr Elizabeth (Lily) Lamb

TIAB 165 Dr Christopher Lyon

TIAB 166 Anne Dickinson

TIAB 167 Professor Lorna Fraser, Professor of Palliative Care and Child Health based at King’s College London

TIAB 168 National Down Syndrome Policy Group

TIAB 168(a) Further written evidence submitted by the National Down Syndrome Policy Group: open letter from 60 regional and national organisations in the UK expressing opposition to the proposed Assisted Dying Bill. This letter outlines various concerns pertaining to the Bill, focusing particularly on its impact on individuals with Down syndrome and learning disabilities.

TIAB 169 Dr Edward Tulloch

TIAB 170 José María Trejo Gabriel y Galán

TIAB 171 Doctor and pharmacist concerns from the Shetland and Orkney Islands

TIAB 172 Dr Catherine Day MBChB FRCGP

TIAB 173 Robin Thomson

TIAB 174 Professor Dame Lesley Fallowfield

TIAB 175 Dr Adele Pilkington

TIAB 176 Christine Kelly

TIAB 177 Miguel Hayworth

TIAB 178 Free Church of Scotland

TIAB 179 Coptic Medical Society UK

TIAB 180 Catholic Medical Association (UK)

TIAB 181 An individual who wishes to remain anonymous

TIAB 182 Dr Janet Menage MA MB ChB, GP (retired)

TIAB 183 An individual who wishes to remain anonymous

TIAB 184 Catholic Bishops’ Conference of Scotland

TIAB 185 Steven Bow FFPH, Consultant in Public Health

TIAB 186 Dr Kazumi Chia

TIAB 187 Dr Keith Williams

TIAB 188 Graham Charkham

TIAB 189 Down Syndrome Research Foundation UK

TIAB 190 Dr Isra Black, UCL Faculty of Laws

TIAB 191 Dr Janet Reiss

TIAB 192 Written evidence submitted on behalf of the main healthcare chaplaincy bodies in the UK

TIAB 193 National Down Syndrome Policy Group

TIAB 194 Dr Christopher Wayte

TIAB 195 Anthony Michael Brooks

TIAB 196 Graham Brack

TIAB 197 David Cahill

TIAB 198 John Allen FRCS

TIAB 199 Dr Gregory K. Pike

TIAB 200 Dr Mark Gilmour

TIAB 201 John Barrett

TIAB 202 Dave Sowry

TIAB 203 Dr Sarah Grove, Consultant in Palliative Medicine

TIAB 204 Professor Mark Taubert

TIAB 205 Dr Livia Tossici-Bolt

TIAB 206 Dr Alastair Brown, Dr Pauline Brown

TIAB 207 E. M. Wojciechowska

TIAB 208 Dr Siwan Seaman

TIAB 209 Dr Sarah Hooper

TIAB 210 Douglas Roberts

TIAB 211 Margaret McCartney

TIAB 212 Dr Catherine Lobb

TIAB 213 Dr James Haslam

TIAB 214 Rev. Richard Blyth

TIAB 215 Heritage Party

TIAB 216 Dr Rachel Quibell, Consultant in Palliative Medicine

TIAB 217 Dr Kathryn Mannix FRCP, Consultant in Palliative Medicine (retired), Campaigner and Medical Writer

TIAB 218 Evangelical Alliance

TIAB 219 Dr Susan Bowie

TIAB 220 Alicia Duncan

TIAB 221 John Etherton

TIAB 222 Matthew Gillman

TIAB 223 Alexander Elphinston

TIAB 224 Dr Rees Johnson

TIAB 225 Dr Rebecca Jones

TIAB 226 UK Deaf and Disabled People’s Organisations’ Monitoring Coalition

TIAB 227 Stephen Twist

TIAB 228 Rosie Clark, a registered nurse

TIAB 229 Bernard Palmer

TIAB 230 Professor Jane L. Hutton

TIAB 231 Colin Wilson, Director, Social Philosophy Analysis

TIAB 232 Emeritus Professor Stephen Hodkinson

TIAB 233 Dr A. C. Hinchliffe

TIAB 234 Dr Jennifer Hardes Dvorak

TIAB 235 Dr Paul Shaw FRCP FRCR PhD

TIAB 236 Anne Iliff MBChB MRCGP

TIAB 237 Dr Cameron McClaren (supplementary)

TIAB 238 Steven Miles MP, Queensland Leader of the Opposition

TIAB 239 All-Party Parliamentary Group on Down Syndrome

TIAB 240 Peter Tan DM FRCS

TIAB 241 Dr Jacinta Tan

TIAB 242 Ann-Marie Chinnery

TIAB 243 Dr C. M. Valinejad AFBPsS, Consultant Clinical Psychologist, Director, Salus Psychological Services Ltd

TIAB 244 Dr Tim Platts

TIAB 245 Hon. Robert Clark, a former Attorney-General and MP in Victoria, Australia

TIAB 245(a) Hon. Robert Clark, a former Attorney-General and MP in Victoria, Australia (further submission)

TIAB 246 Debra Keogh

TIAB 247 Dr Victoria J. Wheatley, Palliative Medicine Consultant, Wales

TIAB 248 Richard Scheffer

TIAB 249 Joint submission from Dr Simon Noah Etkind, Professor Scott Murray, Dr Annabel Price and Dr Sarah Hopkins

TIAB 250 Dr Maggie Spence

TIAB 251 Dr Trevor Stammers FRCGP

TIAB 252 Dr Jamilla Hussain (Supplementary)

TIAB 253 Dr Steve Brennan

TIAB 254 Dr David Ian Jeffrey

TIAB 255 Máire Stapleton MRPharmS MSc Clin Pharm, plus 16

TIAB 256 Judith Coleman

TIAB 257 Kevin Woodhouse

TIAB 258 Professor David Albert Jones

TIAB 259 Dr Mark Wareing

TIAB 260 Dr D. P. Whitehouse

TIAB 261 Dr Philip Howard

TIAB 262 Naomi Clarke

TIAB 263 Ian Watt

TIAB 264 Dr George L. Chalmers MB FRCPEd FRCP

TIAB 265 Dr Kathryn Myers

TIAB 266 Dr Agnes Ayton

TIAB 267 St Joseph and St Etheldreda, Rugeley, Staffordshire, parish conference of the St Vincent de Paul Society

TIAB 268 Barry Gleeson

TIAB 269 Simon Davies

TIAB 270 Dr Vicki Ibbett

TIAB 271 Dr Rosemarie Anthony-Pillai

TIAB 272 Dr Pui Shan Emma Mason BSc (Hons) FRCP MAcadMEd

TIAB 273 Anna Bossong

TIAB 274 An individual who wishes to remain anonymous

TIAB 275 Dr Tara Watson

TIAB 276 St John’s Hospice, Lancaster

TIAB 277 Dr Grace Bull

TIAB 278 Hon. Dr Sally Talbot MLC, Member for South West Region, Parliament of Western Australia

TIAB 279 Dr Virginia Goncalves MBBS MRCPsych, Consultant Psychiatrist (Retired)

TIAB 280 Dr Claire Stark Toller, Dr Mark Banting, Dr Charlie Besley, Dr Rebecca Allan, Dr Hannah Rose and Dr Sophie Jones

TIAB 281 Dr Mark Lee MB ChB MRCP MD

TIAB 282 Simon Henesey

TIAB 283 Ms Lynne Leeder

TIAB 284 David R Grube MD

TIAB 285 National Bereavement Alliance and Childhood Bereavement Network

TIAB 286 James David Young MB ChB

TIAB 287 Professor Michael Dooley, Director of Victorian Voluntary Assisted Dying Service

TIAB 288 Dr Brian Hopkins BM MRCGP DCH DRCOG

TIAB 289 Dr Kenneth Wong MA FHEA, FESC, FACC

TIAB 290 Elijah Granet

TIAB 291 Palliative Medicine Resident Doctors

TIAB 292 Elizabeth Edmunds

TIAB 293 Dr Melody Grace Redman BSc (Hons) MBBS PGCert HPE PGCert ClinRes PGCert

TIAB 295 Dr Hannah Reynolds MBChB BSc MRCPsych

TIAB 296 Dr Francis H. Sansbury

TIAB 297 Chloe Anderson

TIAB 298 Professor Hugo van Woerden MBChB MPH PhD FFPH

TIAB 299 Kate Heaps RGN DN BSc MSc DL

TIAB 300 Thomas Maxwell-Aylwin

TIAB 301 Dignity in Dying

TIAB 302 Dr Wendy Dyke

TIAB 303 Professor Ian Kunkler FRCPE FRCR, Retired NHS Consultant in Clinical Oncology, Edinburgh, Honorary Professor of Clinical Oncology, University of Edinburgh

TIAB 304 VISION consortium

TIAB 305 His Honour Judge Robert Martin

TIAB 306 Mrs Catherine Ashenfelter

TIAB 307 Dr Philip Murray, Fellow, Director of Studies in Law and Tutor, Robinson College, Cambridge, Affiliated Lecturer, Faculty of Law, University of Cambridge

TIAB 308 Dr Christine Murray MBBS (London), MRCS, LRCP, FRCPsych

TIAB 309 Luis Espericueta, Researcher and lecturer in bioethics at the University of Granada, Spain

TIAB 310 Professor Emily Jackson FBA OBE, Law School, The London School of Economics and Political Science

TIAB 311 Dr Tim Howard

TIAB 312 Alyx Rigney

TIAB 313 David and Vivien Child

TIAB 314 Written evidence submitted by a group of general practitioners who work in a large practice in Derbyshire

TIAB 315 Dr Chris Paxton

TIAB 316 Julia Sanderson

TIAB 317 David Foletta, an Australian lawyer

TIAB 318 Dr Helen Corcoran

TIAB 319 Hon. Michael Gaffney MLC, Independent Member for Mersey Legislative Council, Australia

TIAB 320 Dr Nicholas Herodotou, Palliative Medicine Consultant, Honorary Clinical Lecturer, UCLMS, Bedfordshire Hospitals NHS Foundation Trust

TIAB 321 British Geriatrics Society

TIAB 322 Humanist Society Scotland

TIAB 323 Dr Ariel Dempsey MD, DPhil candidate, University of Oxford

TIAB 324 Sir David Haslam CBE

TIAB 325 Mrs Patricia Cook

TIAB 326 Dr Jonathan Buckley

TIAB 327 An individual who wishes to remain anonymous

TIAB 328 Dr Elizabeth Davis

TIAB 329 Dr Robin Arnold

TIAB 330 Dr Katie Jerram, Specialist Grade Doctor, Palliative Medicine

TIAB 331 Dr Michael J Scott MSc PhD

TIAB 332 Heather J. McClure

TIAB 333 John Seymour

TIAB 334 Professor Lucy E. Selman

TIAB 335 Professor Ben Colburn, Professor of Political Philosophy, University of Glasgow

TIAB 336 Regard (the national LGBTQI+ disabled people’s organisation)

TIAB 337 Professor David G. Smithard

TIAB 338 Dr Suzanne Wong

TIAB 339 Victoria Brignall, former Chair of Action on Disability

TIAB 340 Evelyn Rowland

TIAB 341 Dr Mary Neal, Reader in Law, University of Strathclyde

TIAB 342 Dr David Cameron MB ChB

TIAB 343 Simon Dixon

TIAB 344 Dr Kelly Roberts

TIAB 345 Adrian and Patricia Cox

TIAB 346 Janet Williams

TIAB 347 Dr Nicholas Herodotou BSc MBBS DGM DRCOG DPM MRCGP FRCP FHEA

TIAB 348 Sara J. Barrington

TIAB 349 An individual who wishes to remain anonymous

TIAB 350 Lois Williams

TIAB 351 Rev. Martin Cawley

TIAB 352 Dr Anulika Igboaka

TIAB 353 Dr Timothy Trussell MPharm BMBS PGDip DCH MRCGP

TIAB 354 Claire McLachlan

TIAB 355 Dr David Nicholl

TIAB 356 Simon Henesey